Opinion
(December Term, 1844.)
1. A magistrate has no right to issue a search warrant for runaway slaves or such as have been seduced away.
2. A search warrant can only issue for goods or chattels which are distinctly alleged to have been stolen.
3. Where on the face of such a warrant it appears that the magistrate had not jurisdiction, the officer who attempts to execute it is a trespasser.
4. A magistrate ought to issue no such warrant except on oath; but although it does not appear to have been issued on oath, the officer is justified in executing it if the subject-matter be within the magistrate's jurisdiction.
APPEAL from STANLY Fall Term, 1844; Bailey, J.
Attorney-General for the State.
No counsel for defendant.
Indictment for an assault, and the jury returned a special verdict in which they state that the defendant presented a loaded pistol at one Rowland Forrest, the prosecutor, while he was attempting to enter the house of the defendant, in the daytime, claiming to do so by virtue of a warrant issued by a justice of the peace, to search the house of the defendant for a negro alleged to have been stolen from one Thomas Rowland, and further alleging that the negro was in the possession of the defendant; and the jury being ignorant whether said warrant was of sufficient legal form and substance to justify the said Rowland Forrest in entering the house of the defendant against his will, at the time and for the purpose aforesaid, submit the same to the judgment of the court, and if the court is of opinion that the warrant is of sufficient legal form and substance to justify the said Rowland Forrest, then they find the defendant guilty; if otherwise, they find him not guilty. The warrant, which is set forth in the special verdict, states that "Whereas, it appears to me, A. C. Freeman, one of the justices of the peace for Stanly County, that the following negroes (to wit, etc.) have within the last three days been by some person unknown feloniously stolen or went out of the (46) possession of the said Thomas Rowland, Jr., in the county aforesaid, and that the said Thomas Rowland hath probable cause to suspect, and doth suspect, that the said negroes are in the possession of Edith, Dr. F., and Rowland H. Mann, in the county aforesaid." It then goes on to command the officer to enter the dwelling-house of the said parties, warning them, and to search for the said negroes; if found, to bring them and the said parties before the said A. C. Freeman, or some other justice of said county. The judge presiding decided that this precept did not justify the officer in entering the dwelling-house of the defendant against his will, and gave judgment for the defendant, from which the State appealed.
The only question presented to us by the case is, Was the court correct in pronouncing the warrant insufficient to justify the officer? for if it was sufficient the defendant was guilty; if it was not, the defendant was not guilty, and entitled by the special verdict to an acquittal. We entirely agreen [agree] in opinion with the presiding judge. This is a search warrant, and substantially one to search for and apprehend negroes that had run away from Thomas Rowland; for although in the first part of the warrant it is stated that the negroes had been stolen from said Rowland by some person unknown, it immediately proceeds to qualify the charge by stating, "or went out of the possession of the said Thomas Rowland." Whether the warrant was issued upon the oath of any person or not we are not informed. If it was, it is evident the informant had not his own consent to swear they had been stolen. What confirms this view of the case is that the warrant proceeds to state that Thomas Rowland had probable cause to believe, and did believe, that the negroes were in the possession of the defendant, with others — not that they were secreted. It is evident, then, that this was a warrant to search for negroes who had either absconded from their owner and were in the possession of the defendant under a (47) claim of right, or that they had been seduced from his possession by the defendant and were harbored by him. Was it a case, then, which authorized the magistrate to issue a search warrant? We are of opinion it was not, and that the warrant of authority was evident upon the face of the precept. Lord Camden, in Entices, 11 State Trials, 321, states that warrants to search for stolen goods had crept into the law by imperceptible practice; that it is the only case to be met with, and that the law proceeds in it with great caution; for, first, there must be a full charge upon oath of a theft committed. The warrant in this case does not contain a full charge of a theft committed in stealing the negroes, nor, indeed, of any theft, and if the warrant pursues the affidavit, if any was made, does the affidavit make the charge. The case cited establishes the doctrine that a search warrant can be granted only upon a charge of stealing or of the commission of a felony. This doctrine has been expressly recognized in this Court as the law of this State, in S. v. McDonald, 14 N.C. 470. That, also, was a case of a search warrant for negroes who had been seduced from the possession of their owner, and the Court declared that the warrant did not justify the officer who executed it, and that he was criminally guilty of a trespass. Strike out from this warrant the words, "that said negroes have been within the last three days feloniously stolen," and the warrant in McDonald's case is the same with this, and those words, taken in connection with those that follow, fully explain them not to mean a felony, but simply a misdemeanor. The warrant, then, in this case was obviously to search for negroes who had run away or been seduced from the possession of Thomas Rowland, and been harbored by him, which by our laws is but a misdemeanor, for which a magistrate has no power to grant such a warrant. The warrant, therefore, in this case was null and void, and conferred upon the officer no power to act; and in attempting to execute it in the manner he did he is a trespasser, for every officer is (48) presumed to know the law, and to know that he is not bound and has no power to execute a precept which is not within the jurisdiction of the magistrate issuing it. 2 Hawkins P. C., 130, 5, 10; S. v. McDonald, supra. The warrant in this case does not profess to be issued upon the oath of any one, nor does it appear in any part of the case that such was the fact, nor is it at all important to this inquiry how the fact was; it being a matter between the defendant in the warrant and the magistrate. If the magistrate had jurisdiction, the officer was justified in executing it. Every State's warrant, however, issued by a magistrate for an offense not committed in his presence should be on the oath of the party requiring it, as well to ascertain that there is a felony or other crime committed, without which no warrant should be granted, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. 4 Bl. Com., 291.
We see no error in the judgment of the Superior Court, and it must, therefore, be
PER CURIAM. Affirmed.
Cited: Cohoon v. Speed, 47 N.C. 135; S. v. Ferguson, 67 N.C. 221.
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