White v. Pacific Telephone & Telegraph Co. , 162 Or. 270 ( 1939 )

On January 12, 1937, R.V. Jenkins, one of the defendants in this action, swore to an information before the municipal judge of the city of Portland, and ex officio justice of the peace, accusing "John Doe and Richard Roe, whose true names are unknown", of the crime of assault and robbery, being armed with a dangerous weapon. Acting upon this information, the municipal judge on January 12, 1937, signed a "warrant of arrest" for "John Doe and Richard Roe, whose true names are unknown". No other description of the accused individuals was given, either in the information or the warrant of arrest. On the following day, January 13, the police of the city of Portland, pursuant to such warrant, arrested this plaintiff. After taking him into custody, the officer who made the arrest, upon his return to the police station and on his own initiative, inserted in the warrant in typewriting the following: "John Doe, whose true name is Coe C. White". No authority for the arrest other than the warrant is shown or claimed to have existed.

Section 9, article I, of the constitution of Oregon is as follows:

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularlydescribing the place to be searched and the person or thingto be seized." (Italics supplied.)

The purpose of inserting the above provision in the constitution of this state is best explained by the Honorable Matthew P. Deady, who was the president of the constitutional convention which drafted the constitution of Oregon and prepared and reported to the legislative assembly the code of criminal procedure of 1864, certain parts of which code will hereinafter be discussed. We quote, in this connection, from Judge Deady's opinion in Sprigg v. Stump, 8 Fed. 207 at 213, the following:

"This provision [§ 9, supra] is copied from the fourth amendment to the constitution of the United States, and was placed there on account of a well-known controversy concerning the legality of general warrants in England, shortly before the revolution, not so much to introduce new principles as to guard private rights already recognized by the common law. 2 Story, Const. 1902; Conk. Treat. 615. These warrants were issued from the secretary's office for the arrest of persons concerned in printing and publishing of obscene or seditious libels, without naming any one. At length, in Mooney v. Leach, 3 Bur. 1742, (Anno. 1765,) they were declared void for uncertainty, the case being as to the legality of such a warrant issued by the Earl of Halifax, without information on oath, commanding the arrest of ``the printers and publishers' of a ``seditious libel entitled the North Briton, No. 45,' without naming any one. And on April 22, 1766, the house of commons voted that such warrants were illegal. 4 Black. Com. 292, note k.

"The law, as thus declared, was put beyond controversy, as to the government of the Union, by this fourth amendment, and from there transferred to the constitution of the states. At the same time, there being some doubt whether the common law absolutely required that a warrant should issue only upon information on oath, the clause concerning probable cause on oath was added. Hale's P.C. 582; 4 Blackf. 290; Mooney v. Leach, supra; DeGrey,arguendo, 1764."

The code of criminal procedure, which has not been amended since its adoption in 1864 with respect to the provisions hereinafter referred to, provides the procedure which must be followed in order to procure a warrant for arrest. It requires the information on which the warrant is based to be verified "by the oath of the party making it", § 13-2001, Oregon Code 1930, and defines the magistrate who has authority to issue a warrant, §§ 13-2002 and 13-2003, ibid.

Section 13-2007, Oregon Code 1930, reads as follows:

"The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated by a fictitious name, with a statement therein that his true name is unknown, and must also state a crime in respect to which the magistrate has authority to issue the warrant."

It is asserted that under this last quoted section of the criminal code a warrant is sufficient which merely designates the defendant as John Doe or Richard Roe, without any other words to identify or describe the accused. This contention is without merit, in that it overlooks the express provision of § 9 of article I of the constitution, hereinbefore quoted. The names John Doe and Richard Roe are generally recognized as being fictitious and not describing any particular persons. One individual as well as another could be arrested on such appellation in a warrant. The use of those or similar fictitious names does not comply with the mandate of the constitutional provision hereinabove quoted, which requires that the person to be arrested must be particularly described.

The constitutions of all the states except New York, New Jersey, Alabama, Arizona and Washington provide that the warrant must contain a description of the person to be arrested: American Law Institute, Code of Criminal Procedure 186. The appellate division of the supreme court of New York, although that is one of the five states above mentioned, in referring to the designation of an accused by a fictitious name without any other description, in People ex rel. Sampson v. Dunning, 113 A.D. 35,98 N.Y.S. 1067, made the following observation:

"That the ends of justice may not be defeated the law wisely provides, both in civil and criminal cases, that where the name of a necessary party can not be ascertained — where it is, in good faith, unknown — the moving party may designate the defendant, in the summons, and in any other process or proceeding in the action, by a fictitious name, or by as much of his name as is known, adding a description, identifying the personintended. [Italics supplied.] (See Code Civ. Proc. § 451; Code Crim. Proc. § 152.) While in the latter code there does not appear to be any provision calling for a description in those words, it is provided that in the warrant it must ``specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name,' and to designate is to ``point out by distinguishing from others;' to ``indicate by description or by something known and determinate' (14 Cyc. 229), so that it would appear that the policy of the law is not satisfied merely by declaring that John Doe or Richard Roe, or both of them, these names being generally recognized as being fictitious, have been guilty of a crime. Good faith and the spirit of the law alike demand that the parties who are accused of crime, or who are necessary defendants in a civil proceeding, should be pointed out in the papers, if not by their own proper names, then by such descriptions as will enable the parties and the court or magistrate or other officials who may have to do with them, to know who is intended, and this is peculiarly true when the facts and circumstances are such that the accusing party in a criminal proceeding must, of necessity, know the party or parties. It could never have been the intention of the legislature that any individual might, by merely alleging that a fictitious person had committed a crime, begin a general investigation in the affairs of the community; all of our criminal law proceeds upon the theory that every man is presumed innocent until the contrary is shown, and it is all administered, or intended to be administered, with a view to protecting the innocent against the designs of irresponsible and vicious persons."

The majority opinion herein, after quoting § 13-2007, supra, states that the statute is valid, citing in support thereof the annotations in 51 L.R.A. 219 and 4 Am.Jur. 10. The opinion then proceeds to state that, "the issuance of a John Doe warrant upon an information charging the commission of a crime by unknown parties was not void ab initio, and no liability can be predicated against Jenkins and his employer upon the ground that the warrant upon which the plaintiff was arrested was unauthorized or illegal." It would appear from the language used that this court approves the warrant which was issued by the magistrate, and sanctions the arrest of one suspected of having committed a crime, by the use of a John Doe warrant containing no description of the accused. The reference to 4 Am.Jur. 10 is undoubtedly made with respect to § 8 of that work, under the heading "Arrest", which section reads as follows:

"It is essential to the validity of the warrant that the person to be arrested should be identified by the terms of the warrant. This is usually done by the insertion of his name on the warrant, although it is not indispensable that the name of the person to be arrested should appear in the warrant. If, however, the warrant does not set forth the name by reason of its being unknown, or for other adequate cause, the rule is well established that the warrant must contain the best description possible, sufficient to indicate clearly the person to be arrested, and should state his occupation, personal appearance, place of residence, or other means of identifying him. If it does not contain the name of the defendant or any description or designation by which he could be known and identified as the person sought, it is void. Thus, a warrant granted with the name in blank and without sufficient designation of the person to be arrested is void, not only at common law, but as being in violation of the constitutional provisions declaring that every citizen has a right to be secure from unreasonable search and seizure and that no warrant shall issue for the arrest of a person without a special designation of the persons or objects of search, arrest, or seizure. A warrant to arrest ``John Doe,' without any further description or means of identification of the person to be arrested is a nullity. However, where an arrest is made under a John Doe warrant, and later, a regular warrant is issued under which the prisoner is held, the courts have refused to release the person arrested in spite of the invalidity of the original arrest. * * * It appears, however, that a statute may properly be passed authorizing the practice of issuing John Doe warrants. * * *"

In support of the statement in the above quoted excerpt that it appears that a statute may properly be passed authorizing the issuance of John Doe warrants, the only citation of authority is that of the annotation in 51 L.R.A. 219. Turning now to that annotation, we find reference to a New York case which holds to the contrary, and which is followed by the statement that since the decision therein a statute had been passed in New York authorizing the issuance of warrants under fictitious names if the right name of the accused is unknown; and to the case ofTidball v. Williams, 2 Ariz. 50, 8 P. 351. Arizona, a territory at the time of that decision, is now one of the five states which do not have constitutional provisions to the effect that the warrant must contain a description of the person to be arrested.

The Arizona case appears to have been cited only once on the point here involved, and then in West v. Cabell, 153 U.S. 78,14 S. Ct. 752, 38 L. Ed. 643. In that instance the plaintiff, Vandy M. West, was arrested under a warrant issued by the United States commissioner commanding the arrest of James West, and not otherwise designating or describing the person to be arrested. At the trial it appeared that the plaintiff had never been known or called by the name of James West or by any other name than his own. Over the objection of the plaintiff the court admitted oral testimony by the defendants and others that the warrant was issued and intended for the arrest of the plaintiff, and instructed the jury thus: ". . . and if you believe from all the evidence that the plaintiff is the man for whose arrest the commissioner issued the warrant, you will find that the defendants are not liable for damages on account of the mere fact of the arrest."

In passing upon the objection to the oral testimony and the exception to the foregoing instruction, the opinion states:

"By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him. If it does not, the officer making the arrest is liable to an action for false imprisonment; and if, in attempting to make the arrest, the officer is killed, this is only manslaughter in the person whose liberty is invaded": citing numerous authorities.

"The principle of the common law, by which warrants of arrest, in cases criminal or civil, must specifically name or describe the person to be arrested, has been affirmed in the American constitutions; and by the great weight of authority in this country a warrant that does not do so will not justify the officer making the arrest": citing authorities.

After discussing numerous cases, the opinion therein proceeds as follows:

"The only cases cited by the defendants in error, which have any tendency to support the rulings at the trial, were in Delaware, in which the chief justice dissented, and in Iowa and Arizona, whose statutes provided that ``the warrant must specify the name of the defendant, and, if it be unknown to the magistrate, may designate him by any name;' and in none of those cases was any notice taken of opposing precedents or constitutional injunction."

Then are cited cases from Delaware and Iowa, and the Arizona case of Tidball v. Williams, supra, followed by this conclusion:

"In the case at bar, the effect of the rulings and instructions of the court was to give the jury to understand that the private intention of the magistrate was a sufficient substitute for the constitutional requirement of a particular description in the warrant", and therefore, "The judgment is reversed."

Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution and give it the force of law, such construction will be adopted by the courts. In State v. Flynn, 137 Or. 8, 299 P. 694, 300 P. 1024, this court quoted with approval from Cooley's Constitutional Limitations as follows:

"As a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent."

Section 13-2007, supra, can be so construed as to render it not in conflict with § 9 of article I of the constitution, only by treating the statute as supplemental to the constitutional provision and permitting the use of a fictitious name, if the accused is otherwise particularly described in the information and the warrant of arrest.

Before swearing to the information for a warrant of arrest, the defendant Jenkins, according to his testimony, was told of plaintiff's having conspired with two ex-convicts some seven months prior to the robbery here involved, to commit a robbery similar in details to the one that was perpetrated. He also, he said, before signing that information, verified the statement of one of those ex-convicts and found many of the particulars related by him to be correct. Convinced by that statement and his own investigation, Jenkins was of the opinion that the plaintiff was one of the participants in the robbery. Nevertheless, in making the complaint to the deputy district attorney, Jenkins did not even mention White's name. Had he been acting in good faith, believing that there was probable cause for the arrest of White, it is incomprehensible why he did not mention White's name, or why that name was not inserted in the information instead of the fictitious appellation, "John Doe". It cannot, therefore, be said that all the facts and circumstances surrounding the commission of the crime were disclosed to the deputy district attorney before that officer drew up the information for Jenkins to sign. Nor can it be said, in view of the record, that Jenkins and the defendant company had no part in procuring the deputy district attorney to prepare the information, or that the signing of it was not done "upon the initiative of Jenkins or under the direction of the defendant company."

Moreover, I do not agree that the court can say as a matter of law, from the record before it, that probable cause for the arrest and prosecution of White existed, based upon evidence other than the presumption which arises from the magistrate's action in binding White over to the grand jury. There was evidence introduced, to be sure, from which the jury might have found that probable cause did exist; but that is not to say that as a matter of law there was probable cause.

The question of whether Jenkins and the officers of the telephone company disclosed all the facts within their knowledge concerning White's possible connection with the robbery, when seeking advice of counsel as to the signing of the information by Jenkins, was a matter that should have been determined by the jury, in view of the facts in the record.

For the reasons hereinabove set forth I dissent from the majority opinion in the particulars and to the extent indicated.

The result reached by the majority of the court is, I believe, correct, for the reason that the magistrate before whom the preliminary examination was had bound White over to await the action of the grand jury; and it has not been shown that this action of the magistrate was obtained "by false testimony or other improper means".

This action was instituted and tried as one for malicious prosecution, and not for false arrest or imprisonment. The allegations of the complaint before us are insufficient to support such latter cause of action. For that reason, I concur in reversing the judgment appealed from and remanding the cause to the circuit court with instruction to enter judgment for the defendants.