Spears v. Cross , 7 Port. 437 ( 1838 )

GOLDTIIWAITE, J.

— Although it is certainly the most approved practice, for a justice of the peace or other magistrate, to reduce to writing, the oath of the party making a charge and requiring a warrant, yet it is not essential to the validity of a criminal proceeding, that the oath should be thus reduced to writing. The statute (Aik. Dig. 116, s. 13,) does not require it; and it would be a dangerous innovation to allow a defendant to shield himself from liability, for making a false or malicious charge, by any mistake or want of technical accuracy on the part of the officer appointed by the law to institute legal proceedings. The charge is recited in the warrant, and the offer was made to prove, that this identical charge was the one made on oath by the defendant. We can perceive no reason for the rejection of the evidence, unless the whole proceedings were vitiated, by the want of a written affidavit. As this is not necessary under the statute, the opinion of the court below was erroneous.

It has been argued in behalf of the defendant in error, that the warrant was rejected, because the facts necessary to make out a complete case, were not then shewn to the court and jury; and that it is essential to the correct administration of justice, that parties to suits shall be compelled to proceed in a regular manner, from the commencement, to the conclusion of the facts, necessary to make out the case or defence.

It is not perceived, that in those cases, which depend on more than one fact, that it can ever be a matter of much importance, at which end of the testimony the proof is commenced. In no case of this kind would the right of action be complete, without shewing the facts in connection with each other ; and if the evidence offered, is legal in its character, it should not be rejected, because other evidence, making out the whole case, is not yet before the court and jury. If when the case is closed, enough is not shewn to support the action, the whole body of evidence may then be irrelevant, for want of some essential part; but until that time, it is not the province of the court to reject it, if legal.

In no view which we have been able to take of the case, can the rejection of the evidence be supported.

Let the judgment be reversed, and the case remanded-