"That Randal McDonald, one of the defendants, was a constable of Moore County on 29 August, 1831; that on that day D. M., another of the defendants, gave information upon oath of the facts stated in the warrant hereinafter set forth, to W. D., a justice of the peace for the county aforesaid, who thereupon issued the same in the words and figures following: To any lawful officer, etc., whereas complaint has been made on oath before me, etc., by D. M., that a certain Philip Brooks, of, etc., has tempted and persuaded his negroes, etc., to leave him, the said D. M., and now has the same concealed in his possession for the purpose of harboring the same, or conveying them out of the State. These are therefore to command you, etc., to search the possessions of the said P. B. and take the said negroes, if they are found, together with the said Brooks, before me or some other, etc.; that the said warrant was delivered to the said Randal McDonald to be executed, who thereupon, accompanied by the other defendants, who were summoned by the constable to aid in the execution of it, proceeded to the farm of the said P. B., and the defendants then, in execution of the warrant, took into their possession some of the negroes above mentioned, who were laboring upon the farm of the said P. B. and in his service; that the defendants afterwards proceeded to the dwelling-house of the said P. B., and after the constable had demanded admittance into the house, and had been refused, with force and violence broke open the door thereof, and took into their possession others of the negroes above-mentioned, who were then in the house, and carried them away. The jury further find that the said D. M. was entitled to the services of the above-mentioned negroes, and that they were enticed and persuaded by the said P. B. to leave his possessions, but that the said P. B. in good faith claimed to be the lawful owner of them, and that he acquired possession in *Page 381 assertion of his supposed title, and that the said negroes came to his house before daylight on the morning of the said 29 April, 1831. The jury being ignorant, etc. Upon this verdict his Honor gave judgment for the defendants, and Mr. Solicitor Troy appealed. (470) after stating the verdict as above, proceeded: Since hearing the arguments here, and examining the authorities cited, I am satisfied that the judgment I gave in the court below was erroneous.
The question now to be determined is, whether the defendant McDonald, who was a constable, and the other defendants who were summoned by him to aid him, can justify under the warrant mentioned in the case.
At common law a lawful warrant from a justice who has jurisdiction of the cause, justifies the officer who executes it, though it be irregularly issued, but it is otherwise when the justice who issues the warrant has not jurisdiction of the cause. 1 Chitty C. L., 69, Hawk P. C. Bk., 2, ch. 13, sec. 10; Com. Dig. Imprisonment, 8, 9. Warrants to search for stolen goods are authorized by the principles of the common law. Without them, says Lord Hale, felons would frequently escape detection. 2 Hale, 113. A search warrant in this State is to be granted only where a larceny is charged to have been committed. It is not to be granted without oath made before the justice that a felony has been committed, and that the party complaining has probable cause to suspect that the stolen goods are in such a place, and he should show his reasons for the suspicion. 2 Hale, 113, 150 Chitty Crim. Law, 65. The warrant then should be directed to a constable or public officer, and not to a private person. It is fit that the party complaining should be present, and assisting, because he will be able to identify the property which he has lost. 1 Hale, 150.
The justice who issued the warrant in this case had jurisdiction to issue a warrant to search for stolen goods, and whether the facts set forth in the affidavit of the applicant for the warrant (471) constituted a larceny of the goods was for his determination. If he had issued a warrant, which professed to be an authority for the officer to search some particular place for stolen property, then the officer would have been justified in acting under such a warrant, although in truth and fact no larceny had been committed. The justice is to judge and determine upon the questions of law, arising from the facts disclosed in the affidavit of the person making the application. The *Page 382 constable being a ministerial officer, must execute the warrant, and cannot decide whether it should have been issued on such an affidavit or not. I mean that the officer must execute, if the case was one which appeared by the warrant to be professedly within the jurisdiction of the justice. But it seems clear that a constable cannot justify an arrest, by force of a warrant from a justice, which expressly appears on the face of it, to be for an offense of which he has no jurisdiction. 2 Hawk P. C., 130;Shergold v. Holloway, Strange, 1002. The offense set forth on the face of this warrant expressly appears to be of a description which a justice could not issue a search warrant to remedy. The offense charged against the defendant in the warrant is that he "tempted and persuaded his negroes, Tempy, etc., to leave him, the said Daniel McNeill." The offense was not a larceny; it was only made a misdemeanor by the Act of 1821. Tay. Rev., ch. 1120. The justice did not intend, neither did his warrant profess, to have been issued to search for stolen property. In issuing such a warrant he exceeded his jurisdiction, therefore it was void, and the officer was bound to know that it was void, and would be no justification to him if he executed it. The officer is not bound to know whether a warrant which, upon its face, was professedly within the jurisdiction of a justice, had been issued regularly or not. But if from what is stated on the face of the warrant it appear that the justice has exceeded his jurisdiction, the officer is bound to know that such a warrant is void, and will be no justification for his acting under it; and if he executes it, he does so at his peril. The judgment in the Superior Court must be reversed.
(472) PER CURIAM. Judgment reversed.
Cited: S. v. Mann, 27 N.C. 47; Welch v. Scott, ibid., 76; Cohoon v.Speed, 47 N.C. 135; S. v. Ferguson, 67 N.C. 221.