State v. Leach , 38 Me. 432 ( 1854 )

Shepley, C. J.

— Whether the process was issued by virtue of the first or eleventh section of the Act approved-on March 31, 1853, the name of the person by whom the liquors were alleged to have been deposited being stated,the Act declared that “ the officer shall be commanded in and by said warrant, if he find such liquors, to arrest such person or persons and have them forthwith before the judge or justice, by whom such warrant was issued.”'

The complaint and warrant, as issued, did not contain such a prayer or command. The warrant was issued on November 5, 1853, in conformity to the prayer of the complaint, commanding the officer to summon the person named “forthwith to appear before me, at one of the clock in the afternoon at the North Penobscot school-house, in said Penobscot, on the nineteenth of November, 1853.” These precepts were clearly illegal. They were not only unauthorized, but were issued in violation of the provisions of the statute.

The accused appeared on the day last named, and there being no counsel for the State, the case was continued to-the twenty-second day of the same month, when the counsel for the accused made objection to the complaint, warrant,, and service; and on motion of the attorney for the State the complaint was amended by an erasure of the words “ summoned to appear forthwith,” and by an insertion in their place, of the words “ arrested and brought,” so that the complaint then prayed, that the person named might be -arrested and brought before the justice on the 19th day of November; and the warrant was so amended as to command that he should be arrested and brought before the justice on that day.

These documents, as amended, were not authorized by the provisions of the statute, which commanded the arrest to be made, and the prisoner to be forthwith brought before the magistrate. They authorized the arrest and detention of the accused in violation of the provisions of the statute, from the 5th to the 19th day of November.

An amendment of the return of the officer appears also to have been permitted and made, not in conformity to the truth.

These processes being illegal, both before and after their amendment, cannot be sustained, and it will not be necessary to consider the other matters presented.

Proceedings quashed.

Tenney, Howard and Hathaway, J. J., concurred.