Commonwealth v. Wilcox

Dewey, J.

The complaint, in the present case, according to the practice which has been repeatedly sanctioned by the decisions of this court, is sufficient to authorize a judgment against the defendant. The only point presented by the exceptions, which is novel and requires particular consideration, is that which relates to the jurisdiction of the justice of the peace, before whom the trial took place. In the present case, the warrant was issued by one justice, and was returned before another, by whom the complaint was heard and tried. The officer having the warrant for service returned it, together with the body of the defendant, to the justice who heard and decided the case, who was not the same magistrate by whom the complaint was received and the warrant issued; but the officer gives no reason in his return for the course which he thus pursued.

The defendant insists, that, under the provisions of the Rev. Sts. c. 135, § 8, the justice before whom the case was heard had no jurisdiction of the-same. Taking this section of the statute as the sole authority for the jurisdiction exercised by the magistrate, it certainly would seem to favor the position taken by the defendant. But we are of opinion, that the second section of the same chapter (Rev. Sts. c. 135,) confers power upon the officer, in a case like the present, to return the warrant before a different magistrate from the one by whom it is issued, and gives jurisdiction to the justice, before whom the warrant is thus returned, to hear and determine the complaint upon which it is founded.

This is in accordance with ancient usage, both as to the form of warrants, and the practice relating to them ; and we do not suppose that the legislature intended, by the eighth section of the statute above mentioned, to abrogate or change the practice in this respect. That section was probably introduced with a view to provide for cases, if any such there might be, in reference to which no mode of proceeding was elsewhere prescribed. The authority for issuing the warrant, in the form of a direction to the officer to bring the body of the defendant before some other magistrate, as well as to make the same returnable before the magistrate who issued it, was settled in Foster's Case, 5 Co. 59, and is recognized as a legal and proper mode of issuing warrants in criminal cases, in 2 Hale P. C. 112; 1 Ch. Or. L. 39 ; Davis’s Justice, 26. It is now sanctioned, as we think, directly, by the Rev. Sts. c. 135, § 2. We are of opinion, therefore, that the justice had jurisdiction ; and the exceptions are accordingly overruled.