Bradstreet v. Furgeson — 17 Wend. 181

Majority

p. 104

Bradstreet vs. Furgeson.^[1]

Headnote

In it proceeding under the statute to prevent the commission of crimes, where the examination of the complainant reduced to writing subscribed and sworn to by him, contains matter sufficient to authorize the issuing of a warrant of arrest, the justice who issues the warrant has jurisdiction, although no complaint in writing, separate and distinct from the examination, is made.

In a warrant of commitment, issued against a person accused, for refusing to give security to keep the peace, it is not necessary to allege the offence which he is charged to have threatened to commit; it is enough to state the requirement to give security, and his refusal.

It is not necessary that the warrant of arrest should contain a formal adjudication that there is reason to fear the commission of the offence threatened.

This was an action of false imprisonment, tried at the Herkimer circuit, m March, 1835, before the Hon. Hiram Denio, one of the circuit judges.

The plaintiff proved that she was arrested on the 7th July, 1834, by virtue of a criminal warrant, issued by the defendant as a justice of the peace of the county of Herkimer, and brought before him, and then discharged; that on the next day she was again arrested and brought before him on another warrant issued by him, and that he then issued a warrant of commitment, by virtue of which she was taken to the jail of the county, where she remained six days before she was discharged.

The defendant produced in evidence an examination in writing in these words: “ Herkimer county, ss. The examination of George Sterling, taken upon oath before me James G. Furgeson, a justice of the peace of said county, on or about 4th day of June last, 1834, on the complaint made before me by the said George Sterling, on his oath aforesaid, before me, saith, that Martha Bradstreet did threaten to blow my dam brains out with a loaded pistol, and take my life, and likewise swore that she would take my life at any rate. On the day and year before mentioned, before me this 7th day of July, 1834. (Signed), George Sterling. Subscribed and sworn before me, James G. [182] Furgeson, J. P.” He also produced in evidence the warrnat issued by him on the seventh day of July, in which after reciting that George Sterling had that day made complaint in writing and upon oath, before him, a justice of the peace of the county of Herkimer, that he was afraid that Martha Bradstreet would kill him, the said George Sterling for that she had lately threatened to kill him at any rate; and that Sterling had demanded surety of the peace aga.inst her; and after stating that it appeared to him,

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from the examination on oath of Sterling, that there was just cause to fear the commission of the said offence by the said Martha, he commanded her to be apprehended and brought before him to be dealt with according to law. He also produced in evidence another examination, in writing, signed by George Sterling, taken before him the defendant, as a justice, on oath, on the eighth day of July, 1834, in which Sterling stated that he was afraid that Martha Bradstreet would beat, bruise, ill-treat and kill him, for that she had lately presented a pistol to his breast and threatened to blow out his brains, and with the same weapon gave him a blow upon the hand; also, for that at another time she assaulted him with a large knife, and in a menacing manner threatened to plunge the instrument through his heart; concluded by praying that the said Martha might be compelled to give suiety of the peace. He also produced the warrant issued by him on the eighth of Juljr, in which, after reciting that complaint in writing and upon oath had been made before him by Sterling, that, &c. (setting forth the matters contained in the last above examination), and stating that it appeared to him from the examination on oath of Sterling, that there was just cause to fear the commission of the said offence by the said Martha, he commanded that she be apprehended, &c. The warrant of commitment was also produced, directed to any constable of the county of Herkimer, commanding him forthwith to convey and deliver into the custody of the keeper of the jail of the county, the body of Martha Bradstreet, “ this day brought before me the said justice and required by me to enter into recognisance with one or more sufficient surety or sureties, herself in the sum of $1000, and the surety in the sum of $500, for her personal appearance at the next court of general sessions, to [183] be held in the county of Herkimer, and not to depart the same without leave; and in the meanwhile to keep the peace towards the people of this state, and in particular towards George Sterling, who hath demanded surety of the peace against her, she having refused to find such surety”—and then commanding the keeper of the jail to receive the said Martha into custody, and safely keep her until she should find surety as aforesaid, or otherwise be discharged, &c. Upon these documents the defendant rested his defence. The counsel for the plaintiff took various exceptions to the sufficiency of the evidence adduced by the defendant, but the circuit judge ruled that the examinations of the seventh and eighth of July were sufficient in law to justify the issuing of the warrants of arrest; that complaints, separate and distinct from the examinations, were not necessary, and that the warrants were not void from the mere circumstance of the complaint and examination being combined in the same instrument. He also ruled that the warrant of commitment was sufficient in form and substance, and that the defendant had made out a full justification, and accordingly instructed the jury, who found a verdict for the defendant. The counsel for the plaintiff having excepted to the decisions and charge of the judge, a motion was made for a new trial.

A. Hachley & J. L. Tillinghast, for the plaintiff,

insisted that the defendant had wholly failed in establishing a justification. The mode of proceeding in obtaining security to keep the peace, is regulated by statute, and must be strictly pursued. It is necessary that there be complaint in writing and upon oath that a threat has been made to commit an offence against the person or property of a party, and when such complaint is made, it is the duty of the magistrate to examine the complainant and the witnesses who may be produced, on oath, to reduce such examination to W'riting, and to cause the same to be subscribed by the parties examined (2 R. S. 704, § 2). Here it is not pretended that there was a complaint in writing, and the judge erred in ruling that the complaint and examination might be combined in one instrument. 2. There should have been an adjudication by the justice, that there was a reason to fear the commission of the offence threatened, which

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should have been distinctly stated in the warrant of arrest. 3. The warrant of commitment is defective, in not setting forth the offence or crime charged; no fact is stated or matter adjudicated which gave the justice jurisdiction in the case so as to authorize a committal (Cro. Jac. 81; 1 Chitty's Cr. L. 41; Bacon's Abr. tit. Trespass, 674; 2 Inst. 52, 591; 2 Hale, P. C. 122; 1 Ld. Raym. 213; 4 T. R. 230; 6 id. 509; 9 Wendell, 62). 4. The arrest of the seventh of July is wholly unjustified. As to that there is neither complaint or examination as'to the threat of any injury to the complainant; the threat is against the life, of the justice, and not of the complainant.

J. A. Spencer, for the defendant.

By the Court,

The several warrants upon which the plaintiff was arrested, and which constitute the alleged false imprisonment, were issued by the defendant under the provisions of the revised statutes for the prevention of crime (2 R. S. 703); which are distinct and separate from those prescribed in cases where crimes are alleged to have been "actually committed (Id. 706). Some confusion existed upon the argument by confounding the proceedings in the two cases.

By the 2d § p. 704, it is provided, that whenever complaint shall be made in writing and upon oath, to any magistrate that any person has threatened to commit any offence, &c., it shall be the duty of the magistrate to examine the complainant and any witnesses produced, on oath, to reduce the examination to writing and cause the same to be subscribed by the persons examined. The section, as reported by the revisers, did not contain the words "in writing;” and it is difficult to discover their importance, inasmuch as the complainant is to undergo an examination by the magistrate, which is to be [185} reduced to writing and subscribed, before the issuing of the warrant. Strictly, however, according to the letter of the statute, there should be a complaint in writing on oath, and then an examination by the magistrate. But the written examination may be sufficient to give jurisdiction; it places before the magistrate the threatened offence on oath, and contains a full statement of the ground of the complaint within the meaning of the act. The section does not prescribe any particular form, in which the examination shall be reduced to writing; and if good in substance, it is sufficient. Neither is any form prescribed for the complaint; and if the written examination, under oath, signed by the complainant, contains all the statute requires, we perceive no reason against receiviñg the examination and considering it as the complaint in the case. The written examination must or should always contain substantially the matter set forth in the complaint; it will usually contain it in a more extended shape; and then why the importance of any other complaint, or what can be the objection to the examination being considered as .the complaint? Clearly, if it contain sufficient matter to authorize the warrant in the case, it must be sufficient for the complaint; and as the form is not important, it may as well answer for both, as to have one a literal copy of the other. In this case the complaint and examination are the same, embracing in substance the charge that the plaintiff had threatened to take the life of the complainant. The examination on the 8th July is more full than that on the 7th, but either contain a sufficient statement of a threatened offence to give jurisdiction.

By the 3d § it is provided that if it shall appear from the examination that, there is just reason to fear the commission of any such offence by the person comolained of, Sea., it shall be the duty of the magistrate to issue a warrant &c., reciting the complaint, and commanding the officer, Sec., forthwith to apprehend the person, &c. The two warrants issued on the 7th and 8th of July, contained a full recital of the complaints, and were in every respect regular.

By § 4, upon such person being brought before the magistrate, he may be

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required to enter into a recognizance, &c., to appear at the next court of general sessions, &c., and in the mean while to keep the peace, &c. If the recognizance be given, the party is discharged; if he refuses to find sureties, it is the duty of the magistrate to commit him to prison until he shall find the same—specifying in the warrant the cause of the commitment, and the sum in which such security is required. § 5. The cause of commitment, as specified in the warrant in this case is, that the defendant in the proceedings, had been required to enter into a recognisance, 8cc., for her personal appearance at the next court of general sessions, &c., and in the meanwhile to keep the peace towards the people and in particular towards G. Sterling, who had demanded security of the peace, &c., which the defendant had refused. It is supposed, by the counsel for the plaintiff, that the cause of commitment intended by the act was the offence charged and several authorities were referred to for the purpose of establishing this as a rule at common law, and many otliers might have been found, as 2 Hawk. b. 2, c. 16, § 16; 2 Wils. 158; 1 Chitty's Cr. L. 111; 1 Strange, 3 and 4; 1 Bac. Abr. tit. Commitment, 610, 611; 7 T. R. 745. There are several reasons for setting forth with distinctness the crime of cause in the warrant of commitment; otherwise the officer is not punishable if the prisoner escape, nor is it an offence to aid in the escape; and the court or judge, before whom he is brought by habeas corpus, will be bound to discharge or bail him. Where the prisoner is committed on the suspicion or conviction of an offence, the particular crime must be stated; but that rule can not of course be applicable where no crime is charged, and still a commitment is authorized. The point is, to set out tho ground of the commitment, whatever that may be; and then if there be sufficient to detain the prisoner in custody, the rule of law is complied with and the officer justified. What is the ground of the commitment in this case? It is not the threatening the life of Sterling—that is, indeed, the cause of the arrest; but it would not warrant the final commitment. The statute does not authorize a commitment upon that charge, but for refusing to enter into a recognisance, with security to keep the peace. “ If such per- [187] son shall refuse to find such security, it shall be the duty of the magistrate to commit him to prison, &c., specifying in the warrant the cause of commitment,” &c., manifestly meaning the refusal to give the security. If the warrant had contained the recital that it satisfactorily appeared before the justice that the defendant therein had threatened the life of G. Sterling, and then proceeded to direct a commitment, it clearly would have been defective, as not coming within the terms or meaning of this section. Such a warrant would have authorized the arrest under the 2d §—not the commitment under the 5 th.

Most of the law upon the subject of “ surety for the peace,” and for “ good behavior,” will be found in Burns's Justice, a book of the highest authority in these matters, vol. 4, p. 265, 299, and which contains a variety of forms of warrants and commitments. They are in point to sustain the correctness of those used in this case. See form of commitment for neglect to enter into recognizance, p. 296. It should be remembered that the fifth section of our statute requiring the cause of the commitment to be set forth in the warrant, is merely declaratory of the common law, and a form good at common law is an authority for one under the statute. I may add, that the form in question is in conformity to those in general practice.

It was supposed that the third section required a formal adjudication by the justice, that the complainant had just reason to fear the commission of an offence, &c., before issuing the warrant; but that is a mistake. The satisfaction of the mind of the magistrate is sufficient, and the fact of issuing the process is evidence enough that it appeared to him that there was just reason to fear the commission of the offence. New trial denied.