Larson v. Collins , 195 Mich. 492 ( 1917 )

Brooke, J.

(after stating the facts). On behalf of the appellant, it is contended that the commitment was fair upon its face and a sufficient protection for the sheriff. It is said that the commitment was held invalid by the trial court, not because the particulars of the judgment were not set forth, but because the offense was not set forth with that degree of particularity which might be required in the complaint; and it is urged that the law does not require the commitment to set forth the offense with as much particularity as might be required in the case of an indictment or an information. Counsel cites 12 Am. & Eng. Enc. Law (2d Ed.), pp. 765-767, where it is held generally that when an executive officer is directed by a warrant, valid upon its face, he is not bound to look behind the face of the writ placed in his hands to be executed, nor to take notice of extrinsic facts; but he will not be permitted to question the validity of a writ neither void nor voidable upon its face, and this even though the magistrate issuing the warrant committed an error of judgment in so doing, or even though the writ has been illegally or fraudulently issued. The case of Wheaton v. Whittemore, 49 Mich. 348 (13 N. W. 769), is also cited. This court there said:

“The officer is not bound to look behind a regular warrant coming from a proper jurisdiction. In many cases it must be exceedingly difficult for the officer or his advisers to determine whether a warrant is or is not defective upon its face, and in view of the peculiar position in which the officer is placed, in all such cases he cannot be held liable in a civil action for damages, for making the arrést.

“Where a criminal warrant is issued by a magistrate in a case where he has no authority to issue process of that nature, ordinarily no question could arise; but, where jurisdiction is given him over the subject-matter, his warrant ‘reciting the substance of the accusation’ will not always show upon its face whether the magistrate did or did not have the necessary jurisdictional facts, before him. And the officer is not required for his protection to inquire into the facts back of his warrant.”

It should be noted that in the authorities cited on behalf of the appellant the officer is held to be protected only by a warrant fair upon its face. It is asserted by counsel for appellee, and with that contention the learned circuit judge agreed, that the commitment set out a conviction for no offense known to the law. The paper recites that the plaintiff was—

“duly convicted of having on the 30th day of September, A. D. 1915, at the city of Muskegon and in the said county aforesaid, did then and there act in a disorderly manner on one of the public streets of the city of Muskegon contrary to the form of an ordinance of said city entitled, ‘An ordinance relating to disorderly persons.’ (section 3), January 25, 1878, and against the peace and dignity of the people of the State of Michigan.”

While we agree with counsel for appellant that actions of this character against officers of the law should not be encouraged, we are yet constrained to hold that the commitment recited a conviction of no offense known to the law, and was therefore void upon its face and insufficient to afford protection to the officer who executed it. The following cases, while not identical with the one at bar, sustain this conclusion upon principle: Le Roe v. Roeser, 8 Mich. 537; In the Matter of Leddy, 11 Mich. 197: Rogers v. Jones, 3 Barn. & Cress. 409.

Where the facts are undisputed, the question of probable cause is a question of law for the court. That being the situation in the case at bar, a verdict was properly directed. White v. McQueen, 96 Mich. 249 (55 N. W. 843).

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.