Crumpton v. Newman , 12 Ala. 199 ( 1847 )

COLLIER, C. J.

The 20th section of the 5th chapter of the penal code, enacts, that “ if any person shall knowingly and wilfully resist or oppose any officer of this State, in serving or attempting to serve, or execute, any legal writ or process whatsoever, he shall, on conviction thereof, be fined not less than fifty, and not exceeding one thousand dollars.” [Clay’s Dig. 430, § 20.] It is perfectly clear, that the mere concealment of property of a debtor, or the refusal to inform an officer who has an execution against his estate, where it may be found, does not amount to an offence under this statute, or at the common law. To constitute the offence of resisting or obstructing process in a criminal point of view, there must be an active opposition; not merely taking charge of a debtor’s property, keeping it out • of view, and refusing when called on by an officer to place it within his reach. This is so clear a principle of law, that it is unnecessary to cite authority for its maintenance.

The question then is, is the warrant under which the plan-tiff was arrested, a nullity, so that the arrest and detention under its authority was an unlawful imprisonment? In Duckworth v. Johnston, 7 Ala. Rep. 578, a warrant was issued by a justice of the peace, requiring the arrest of the plaintiff, upon the oath of the defendant, that the plaintiff “had property in his hands, in a fraudulent condition.” We there said, that the “ mere fact that one is the custodian of property, in fraud of the rights of others, or holds it to the prejudice of his own, or third persons’ creditors, will not subject him to proceedings at the instance of the State.” Further, it must be intended that the warrant recites the substance of the accusation, and upon this hypothesis it is defective ; for although it be true, the offence is not punished criminally. In that case, as well as the present, the warrant conformed to the affidavit, and there was no variance of which the defendant could avail himself. It was added that “ the case Stated in the warrant, being without the jurisdiction of the justice of the peace, it necessarily follows the warrant is void for defects apparent on its face.” Many authorities are cited by the court, from which these conclusions are deduced. Where an injury is done to a person by the regular process of a competent court, case is said to be the proper remedy, and trespass is not sustainable •, but where the warrant is a nullity, it should not be executed, and the party who caused it to be issued, as well as the officer who acted under its authority, are liable in trespass to the party arrested.

• The case cited, is a satisfactory authority to show, that the ■’’'present fiction is properly conceived. We have seen that the warrant "does not disclose an offence known to the law. It it had. merely stated that the plaintiff resisitedor opposed the execution qf process, it perhaps would have been sufficient; ' biffin developing the accusation it goes beyond this, and shows that what is called a resistance of the action of the constable does not constitute a criminal offence. The entire proceeding indicated by the affidavit and warrant was then coram non judice: consequently the judgment is reversed and the cause remanded.