The defendant was convicted in the municipal Court of the Town of Mayesville for a violation of an ordinance against automobile speeding. Upon the trial he moved to dismiss the proceeding upon the ground that the warrant upon which he was arrested was *Page 358 issued upon an affidavit made by the officer upon "information and belief," without stating the information or the source of it. His motion was refused, and conviction followed with a sentence of $75 fine or imprisonment for 30 days. Upon appeal to the Circuit Court, his Honor, Judge Johnson, signed an order affirming the conviction below, for reasons stated in the order as set forth in the opinion of Mr. Justice Carter. From this order and judgment the defendant has appealed to this Court.
The sole question in the appeal is whether an arrest warrant, based upon an affidavit made upon "information and belief," without stating either the information received or the source of it, is legally sufficient. It is conceded that, if this question should be decided in the negative, the defendant was entitled to his discharge, and the judgment must be reversed.
The Constitution, Art. 1, § 16, provides:
"The right of the people to be secure in their persons, * * * against unreasonable * * * seizures, shall not be violated, and no warrant shall issue but upon probablecause, supported by oath or affirmation. * * *"
Section 60 of the Code of Criminal Procedure confers upon municipal Courts "all the powers and authority of Magistrates in criminal cases" in the trial of offenders against their ordinances.
Section 26 provides:
"All proceedings before Magistrate in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, andonly which, shall a warrant of arrest issue."
What is it to be supported by oath or affirmation?
In the case of State v. Higgins, 51 S.C. 51,28 S.E., 15, 38 L.R.A., 561, it is not clear whether the arrest was held illegal, for the reason that there was no affidavit at all supporting the warrant, or whether it was defective in form. It is stated in the opinion: *Page 359
"Now from the papers accompanying the sheriff's return to the writ of Habeas corpus, and referred to in the return, it is manifest that the warrant under which the defendant was arrested was not supported either by oath or affirmation; * * *" The Court, however, declared: "In the case of the State v. Wimbush, 9 S.C. 309, it was held that a warrant issued on a statement of facts not sworn to is unconstitutional, null, and void, and that it was not unlawful to resist an officer attempting to arrest one under an illegal warrant"; and "The Constitution, in Sec. 16 of Art. 1, forbids the issuing of any warrant for the arrest of any person except upon probable cause, supported by oath or affirmation."
Turning to the Wimbush case, we find that there was no affidavit at all supporting the warrant, only a statement in writing by the prosecutor upon which the warrant was issued. That case is therefore not of much assistance in answering the question above indicated.
In Ex parte Burford, 3 Cranch, 448, 2 L.Ed., 495, there was no supporting affidavit. The Court said:
"* * * The warrant of commitment was illegal, for want of * * * some good cause, * * * supportedby oath."
Still that case does not answer the inquiry.
In Branchville v. Felder, 86 S.C. 280, 68 S.E., 575, upon call of the case in Mayor's Court the defendant demanded a warrant (a warrant of course supported by a valid affidavit); the demand was refused. Upon appeal, the conviction was reversed upon the ground that the defendant was entitled to an arrest warrant, of course properly supported.
Still this case does not answer the inquiry.
I think that the inquiry is answered in the case of Murrayv. Harris, 112 S.C. 342, 99 S.E., 798, 5 A.L.R., 1152. It is true that that was a case of extradition, but the question there raised was identically the question now raised, *Page 360 whether a supporting affidavit containing the charge "upon information and belief" simply, without stating the sources of information or the grounds of belief, was a sufficient compliance with the legal requirement contained in the Constitution. It can make no difference whether the question was raised in an extradition case or in a case involving the breach of a local statute or ordinance; the question is the same in either case.
The Court there declared:
"This brings us to the consideration of the ground upon which we are asked to sustain Judge Townsend's order, to wit: That the affidavit upon which the Governor's warrant was issued was insufficient in law. The affidavit is sufficient in substance to charge respondents with the crime of burglary; but it is fatally defective in form, in that the facts set forth are sworn to `to the best of his (affiant's) knowledge, information, and belief,' without stating what facts were within his knowledge, and what were stated upon his information and belief, and without setting forth the sources of his information or grounds of his belief. Under such an affidavit, a citizen might be deprived of his liberty, and carried to a distant State, where he has neither friends nor property, and where even his good name would not avail him, upon the belief of the affiant, which, when sifted, would amount to nothing but a mere suspicion. The law requires that at least probable cause shall be made out. It need not be stated with technical accuracy. It is enough if it be stated substantially, so as to lead a fair and reasonable mind to conclude that a prima facie case of guilt has been made out. This must appear before the Governor is authorized to issue his warrant. Roberts v. Reilly, 116 U.S. 80, 95,6 S.Ct., 291, 29 L.Ed., 544.
"We must not be understood as holding that the affiant must have actual knowledge of the facts constituting the offense, or of any of them. An affidavit based upon information and belief is deemed sufficient, if the facts stated *Page 361 make out a probable case, and if the sources of information and grounds of belief are stated. Unless this is done, the accused is not legally charged with having committed a crime."
The Court quoted at length, with approval, from the case of Rice v. Ames, 180 U.S. 371, 21 S.Ct., 406,45 L.Ed., 577, where the following striking observations occur:
"The first two complaints, which were dismissed, as well as the first count of the complaint under which the proceedings were finally had, were obviously insufficient, since the charges were made solely upon information and belief, and no attempt was made even to set forth the sources of information or the grounds of affiant's belief. This is bad, even in extradition proceedings, which are entitled to as much liberality of construction in furtherance of the objects of the treaty as is possible in cases of a criminal nature. * * * A citizen ought not to be deprived of his personal liberty upon an allegation which, upon being sifted, may amount to nothing more than a suspicion. While authorities upon this subject are singularly few, it is clear that a person ought not to be arrested upon a criminal charge upon less direct allegations than are necessary to authorize the arrest of a fraudulent or absconding debtor."
The Court also cites 11 R.C.L., 743, where it is stated:
"A crime must be distinctly charged in the criminal proceedings, and the charge of crime must be made by persons who are acting under oath. A complaint sworn to by a person who does not pretend to have any personal knowledge of the facts or charge contained therein, and who merely states the charge on his information and belief, is insufficient" — citing Grin v. Shine, 187 U.S. 181, 23 S.Ct., 98,47 L.Ed., 130; Glucksman v. Henkel, 221 U.S. 508;Ex parte Spears, 88 Cal., 640, 26 P., 608, 22 Am. St. Rep., 341.
In Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct., 704,55 L.Ed., 830, the Court said: *Page 362
"The complaint [that is, the supporting affidavit in extradition] is sworn to upon information and belief, but it is supported by the testimony of witnesses who are stated to have deposed and whom therefore we must presume to have been sworn. That is enough." The necessary implication is that the accompanying depositions were all that saved the otherwise insufficient warrant.
In Rice v. Ames, 180 U.S. 371, 21 S.Ct., 406,45 L.Ed., 577, the Court said:
"If the officer of the foreign government has no personal knowledge of the facts, he may with entire propriety make the complaint upon information and belief, stating the sources of his information and the grounds of his belief, and annexing to the complaint a properly certified copy of any indictment or equivalent proceeding, which may have been found in the foreign country, or a copy of the depositions of witnesses having actual knowledge of the facts, taken under the treaty and Act of Congress. This will afford ample authority to the commissioner for issuing the warrant. * * * The first count is bad, by reason of its unsupported allegations upon information and belief. * * *"
A similar provision in the attachment law has been construed to require the affidavit to positively state the facts, and, if upon information, it must also state the sources of information and circumstances relied upon to show them. There the provision is: "The warrant may be issued whenever it shall appear by affidavit that a cause of action exists," etc. See cases cited in note to Section 502, Code Civ. Proc. It certainly would be remarkable that greater laxity should be countenanced in instances of the deprivation of a man of his liberty than of his goods and chattels. As the Supreme Court of the United States (Rice v. Ames,180 U.S. 371, 21 S.Ct., 406, 45 L.Ed., 577) observed as above quoted: "* * * A person ought not to be arrested upon a criminal charge upon less direct allegations than are necessary to authorize the arrest of a fraudulent or absconding *Page 363 debtor"; or I may add than is necessary to authorize the sequestration of his property.
See, also, 16 C.J., 287.
I realize that the adoption of my views in this matter would cause inconvenience to officers and some embarrassment; but in my opinion such considerations are negligible as compared with the observance of the provisions of the Constitution in protection of the sacred right of the liberty of the citizen.
MR. CHIEF JUSTICE WATTS concurs.