State v. Wimbush , 9 S.C. 309 ( 1878 )

The opinion of the Court was delivered by

Haskell, A. J.

The indiscriminate issuing of search warrants is an abuse of power guarded against by the Constitution of the United States and of this State; while, on the other hand, the proper exercise of the power is both lawful and essential. By Article IV of amendments to the Constitution of the United States, “ the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” The Constitution of South Carolina, Article I, Section 22, in the declaration of rights, is equally explicit, and absolutely prescribes that “ all warrants shall be supported by oath or affirmation, * * * and no warrant shall be issued but in the cases and with the formalities prescribed by the laws.”

General Statutes, p. 196, Section 16, directs that “ all proceedings before Trial Justices in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue.”

In this case the testimony of the Trial Justice who issued the warrants of search and arrest clearly shows that the information on which the warrants were founded was not given upon oath, as alleged in the warrant, but consisted of a mere statement in writing, not sworn to.

In Ex parte Burford, (3 Cra., 447,) the case came by habeas corpus before the Supreme Court of the United States.

The prisoner had been committed to jail “by a warrant under the hands and seals of Johan Thompson and ten other Justices of the Peace.”

“The Judges of the Supreme Court were unanimously of the opinion that the warrant of commitment was illegal for want of stating some good cause certain, supported by oath,” and the prisoner was discharged.

The only difference in the cases is that in the one the error was patent on the face of the warrant; in the other, this case, it is proved by the testimony of the Trial Justice. There is no real difference, and the rules of law apply with equal force to each.

This warrant of search and seizure, not being “supported by oath or affirmation,” is clearly illegal, and, therefore, is not of any legal force. It is needless to go into the other questions of the want of particular and specific designations of person and place in the information and in the warrant, nor is it necessary to pass upon the qualification of these defacto officers.

It only remains to inquire into the points raised by the Circuit Judge in his charge to the jury, “that the validity of the commissions and the legality of the proceedings were only collaterally involved, and that in the interest of the public justice and the public peace he would overrule all the points of law made by the defendants.” This language is too strong and may be construed to mean that a Judge may sometimes overrule what is law for purposes of public policy.

If, however, the meaning be that the legality of a process is immaterial, or that an illegal process may not be lawfully resisted, it is still erroneous. “Even a forcible resistance of an arrest may be defended if it appear not that the arrest was lawful, and a third person may interfere to prevent an illegal capture if he do no more than is necessary for that purpose.” — Per Wardlaw, J., in The State vs. Harley, 2 Strob., 73.

In Rex vs. Osmer, (5 East.,) Lord Ellenborough, C. J., said: “If a man without authority attempt to arrest another illegally, it is a breach of the peace, and any other person may lawfully interfere to prevent it.”

Defect in the authority of the Court, as in this case, is more fatal than the defect by reason of error on the face of the process. The Court had no power or authority to issue the process without information under oath, and without that information its process was no process, and to resist it was not an offense.

The instruction of the jury concludes as follows : “That, whether the process was void or not, the defendants did not know it, and, therefore, could not avail themselves of it.” This is a violent presumption of fact and of law which cannot be permitted. There is no evidence that the defendants “did not know it;” and if there had been, that was a question of fact for the jury; and if they did not know it, there is no difference; for it is proved that it was not a lawful process, and there the case must fail, for the defendants are indicted for resisting a public officer in the execution of a lawful process. In addition to this, it is an unfortunate use of words. In the eye of the law “every man is presumed to be cognizant of the statute law of this realm and to construe it aright, and if any individual should infringe it through ignorance he must, nevertheless, abide by the consequences of his error. It will not be competent to him to aver in a Court of justice that he has mistaken the law, this being a plea which no Court of justice is at liberty to receive.”- — -Brown’s Legal Max., 265.

A Court which is bound to presume knowledge to inflict upon the accused a penalty which the law imposes cannot presume ignorance to deprive him of a protection which the law confers, much less can defendant’s ignorance of any law constitute an act or crime when the law says it is not a crime.

The motion for a new trial is granted.

Willard, C. J., and Melver, A. J., concurred.