Martin v. State

This is an appeal from a judgment making final a judgment nisi on a bail bond.

An affidavit charging Martin with the commission of a felony was made and lodged with the Clerk of the Circuit Court of Smith County, who issued a warrant thereon for the arrest of Martin, returnable instanter before the Judge of the Circuit Court of Smith County "at my office at Raleigh in said county and state." The sheriff of the county arrested Martin on this warrant and admitted him to bail, the bond therefor requiring him "to appear before the circuit court of Smith County, in said state, instanter, to answer the charge," etc. Ten days thereafter a judgment was rendered by the circuit judge reciting that Martin had failed to appear, awarding the State a recovery on the bond, and directing that the sureties thereon be summoned to appear and show cause why the judgment should not be made final. The sureties appeared at a later term of the court, and, over their protest, the judgment nisi was made final.

Several questions are presented by the record, error in all of which is admitted by the Assistant Attorney General. At least one of these questions, which as hereinafter appears, must be decided in the appellant's favor and will require a judgment here not only reversing the judgment of the court below but the dismissal of this proceeding on Martin's bond. That question is: Did the circuit clerk have the authority to issue this warrant? If he did not, Martin's arrest was unlawful, the sheriff was without authority to hold him in custody, and the bond by which he was set at large is void, unless it is valid under Section 1246, Code 1930.

1. Did the circuit clerk have authority to issue this warrant? Section 2964, Code 1930, applies to the clerks of all courts, but only as to process issuing out of the courts of which they are clerks, and obviously has no application here. No other source has come under our observation from which authority in a clerk of the circuit court to issue a warrant for the arrest of a person charged with the commission of a crime by an affidavit lodged with him can be derived, unless it be Section 167 of the State's Constitution of itself alone or in connection with the common law or Section 1321, Code 1930.

Section 167 of the Constitution is as follows: "All civil officers shall be conservators of the peace, and shall be by law vested with ample power as such." This section is self-executing only to the extent that it designates all civil officers as conservators of the peace, thereby charging them with the duty of keeping the peace. It does not provide ways and means for the discharge of this duty, which must be found either in the common law of this State, or in a statute enacted by the legislature thereof. The inquiry into whether either of these sources provide such ways and means may best be begun by an examination of the common law, if any, pertaining to conservators of the peace.

A conservator of the peace, ex vi termini, is a person charged with the duty of keeping the peace. In England, prior to A.D. 1195, this duty was discharged by certain public officers charged therewith by virtue of their offices. In A.D. 1195, under a proclamation by the king's Justiciar, there came into existence another class of persons charged merely with the duty of keeping the peace, who became known as wardens or conservators of the peace. Prior to the reign of Henry the Second, persons charged with keeping the peace discharged that duty by preventing the commission of a crime in their presence, or arresting therefor when so committed. Whether this authority was conferred by the common law or by edict of the king is by no means clear, but beginning with and after that reign their duties were prescribed, at first, by edict of the king, and, later, by statute. The second of the above classes of conservators of the peace were superseded by justices of the peace who came into existence during the reign of Edward the Third, and they soon disappeared from the English judicial system, so that in A.D. 1765, Lord Chief Justice Camden, in Entick v. Carrington, 19 St. Trials, 1029, 1062, could say "the keeping of the peace being so completely transferred to and so engrossed by the justices, that the name of conservator is almost forgot." The powers and duties of justices of the peace, when acting as conservators of the peace, were gradually enlarged by statute until they came to be about the same as those with which our justices of the peace are now invested. All of this will appear from 1 Holdsworth's Hist. of Eng. Law, 286 et seq.; 1 Stephen's History of the Criminal Law, 185, 190; 2 Hawkins, P.C., 8th Ed., Chap. 8; 1 Black Com. 349, et seq. (2 Cooley's Blackstone, 4th Ed., 294); Smith v. Abbott, 2 Harr. 358, 17 N.J.L. 358 ; Marcuchi v. Norfolk, etc., Ry. Co., 81 W. Va. 548, 94 S.E 979; In re Barker, 56 Vt. 14; 1 Bouv. Law Dict., Rawles' Third Revision, p. 612; Black's Law Dic. 3rd Ed. 403; 15 C.J.S., Conservator, p. 984; 12 C.J. 522; 35 C.J. 449. Since no English statute, however ancient, is a part of the common law of this State (Boarman v. Catlett, 13 Smedes M. 149; Jordan v. Roach,32 Miss. 481), the authority and power of a conservator of the peace with us are such only as are defined and limited by a statute enacted by the legislature of the state, except to arrest for crimes committed in his presence, an authority possessed at common law and now by statute by every person. That such is the fact was recognized and acted on by the conventions which adopted the state constitutions of 1832, 1869, and 1890 (the one now in force).

Section 22 of Article IV of the Constitution of 1832, provided that "The judges of all the courts of this State, and also the members of the board of county police, shall in virtue of their offices be conservators of the peace, and shall be by law vested with ample powers in this respect." Section 22 of Article VI of the Constitution of 1869 provided that "Judges of all the courts of this state, and all other civil officers, shall, by virtue of their office, be conservators of the peace, and shall be, by law, vested with ample powers in that respect." Section 167 of the Constitution of 1890 has hereinbefore been set out.

A conservator of the peace having no common-law authority to issue a warrant for the arrest of a person charged with the commission of a crime by an affidavit filed with him, such authority must be found with us in a statute enacted by the legislature of this State. The only statute in which such authority could be found is Section 1321, Code 1930, when construed in connection with Section 167 of the Constitution. That section of the Code is as follows: "Any conservator of the peace may, by warrant issued under his hand, cause any person charged on affidavit with having committed, or with being suspected of, any offense against the law, to be arrested and brought before him, or before some other conservator of the peace in the proper county; and, on examination, the conservator of the peace shall commit the offender to jail if the offense be not bailable, and if it be bailable and the offender fail to find bail."

The words "any conservator of the peace" would, of course, include all civil officers designated as such by Section 167 of the Constitution, unless, when construed in connection with other sections of the code, they appear to have a more restricted meaning. Section 1320, Code 1930, which the reporter will set out in full,¹ immediately preceding Section 1321, provides that "The judges of the Supreme, circuit, and chancery courts and [are] conservators of the peace throughout the state, and each judge of the county court and every justice of the peace is such within his county. Any conservator of the peace has power," etc. It is manifest from its context that the word "and" in the second line of Section 1320 between the words "chancery courts" and "conservators of the peace" should be "are." Any doubt thereof is cleared up when the section's prototype, Section 1460, Code 1892, which appears in the Code of 1906 as Section 1533 thereof, is examined, for the word there used was "are." In order, therefore, to effectuate the legislative intent, the section must be construed as if the word "are" instead of "and" had been used. Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514, and authorities there cited.

An examination of the legislative history of Sections 1320 and 1321, Code 1930, and of conservators of the peace generally, will disclose that the two sections are essential parts of a complete legislative scheme and the words "any conservator of the peace" in Section 1321 apply, and are limited to the persons designated as conservators of the peace in Section 1320. Prior to the Code of 1892 the various legislatures conferred the powers of a conservator of the peace upon specific civil officers by separate statutes or sections of the codes designating them as conservators of the peace. This power was conferred not on all civil officers but only on a small number of them, e.g., judges of the various courts, justices of the peace, members of the boards of supervisors, and election commissioners; other officers, e.g., sheriffs and constables, were charged with the duty of preserving the peace and given limited powers therefor without being designated as conservators of the peace. When the Code of 1892 was adopted, all of the officers, except members of the boards of supervisors and election commissioners whom the legislature had theretofore been accustomed to designate as conservators of the peace, were grouped in Section 1460 thereof, now Section 1320, Code 1930, which was followed immediately by Section 1461, now Section 1321, Code 1930. Sections 1460 and 1461, Code 1892, were expressly made applicable to members of boards of supervisors by Section 286 of the same code, now Section 210, Code 1930. Sections 1460 and 1461, Code 1892, were taken from the statute the legislature had theretofore been enacting when conferring the powers therein set forth on justices of the peace, which first appeared in "An Act concerning the appointment, the jurisdiction, and the powers of justices of the peace within this state," enacted in June, 1822, and brought forward into Hutchinson's Mississippi Code at p. 688. Section 3 of the act begins with the words "The justices of the peace of the several counties in this state shall be conservators of the peace within their counties," and then proceeds substantially, though not literally, as does Section 1460, Code 1892, now Section 1320, Code 1930. Section 4 of the act provides that "Any justice of the peace now in commission, or who may hereafter be appointed, shall, by warrant" etc., and then proceeds substantially, though not literally, as does Section 1461, Code of 1892, now Section 1321, Code 1930. These two sections of the Act of 1822 were brought into the Code of 1857 as Articles 328 and 329 of Chapter 64 thereof, p. 626; into the Code of 1871, as Sections 2821 and 2822 thereof; into the Code of 1880, as Sections 3112 and 3113 thereof, dealing in each instance with only the office of justice of the peace. Each of them was a part of a complete legislative scheme set forth in the two, and the second referred to and was limited by the first.

When Section 1460 of the Code of 1892, grouped all of the offices except that of boards of supervisors, to which the legislature had been accustomed theretofore to annex all or a part of the duties and powers of a conservator of the peace, and conferred on them the powers and duties as conservators of the peace theretofore conferred by the Act of 1822 and the sections of the codes of 1857, 1871, and 1880 hereinbefore designated, and the words "any justice of the peace" theretofore contained in Section 4 of the Act of 1822, brought forth into prior codes as hereinbefore set forth, were changed in Section 1461, Code of 1892, to "any conservator of the peace," it seems clear that the legislature intended the second section to refer to and be limited by the first, as had been the case theretofore. This conclusion is reinforced by the fact that the words "any conservator of the peace" in Section 1461, Code 1892, now Section 1321, Code 1930, also appeared in Section 1460, Code 1892, now Section 1320, Code 1930, and they there refer only to the persons designated therein as conservators of the peace. If the words "any conservator of the peace" in these sections were not intended by the legislature to be limited to the persons designated as such in the first section, but were intended to apply to all civil officers made conservators of the peace by Section 167 of the Constitution, then the designation in the first section of particular officers as conservators of the peace was useless and serves only to confuse, — a result which we must presume, unless the contrary appears, that the legislature did not intend.

Section 6177, Code 1930, provides that "While engaged in their duties, the [election] commissioners shall be conservators of the peace in the county, with all the duties and powers of such." What those duties and powers are, it is not necessary for us to decide; for if they confer on election commissioners the powers and duties of a justice of the peace when acting as a conservator of the peace, as to which we express no opinion, it would not follow therefrom that such powers are possessed by all civil officers merely because Section 167 of the Constitution required them to keep the peace.

A clerk of the circuit court being without power to issue a warrant for the arrest of a person charged with the commission of crime by an affidavit lodged with him, the arrest of Martin here made on a warrant issued by a circuit clerk was illegal, and the bond under which he was set at liberty is void, unless as hereinbefore said it is valid under Section 1246, Code 1930.

2. Section 1246, Code 1930, provides that, "All bonds, recognizances, or acknowledgments of indebtedness, conditioned for the appearance of any party before any court or officer, in any state case or criminal proceeding, which shall have the effect to free such party from jail or legal custody of any sort, shall be valid and bind the party and his sureties, according to the condition of such bond, recognizance, or acknowledgment, whether it was taken by the proper officer or under circumstances authorized by law or not, or whether the officer's return identify it or not." This section is based on the assumption that the principal in the bail bond is lawfully in custody and has no application where there is "an absolute want of power" in the officer who arrested the principal in the bail bond to so do and who exacted the bond before he would release the principal therein from custody. Smith v. State, 86 Miss. 315, 38 So. 319; Boykin v. West, 183 Miss. 567, 573, 184 So. 624. It would be anomaly for a statute to provide that such a bail bond is valid.

The judgment of the court below will be reversed; the judgment nisi will be set aside, and this proceeding on Martin's bail bond will be dismissed.

So ordered.

¹ "1320. Conservators of peace — to bind over felons and other offenders to circuit court. — The judges of the Supreme, circuit, and chancery courts and conservators of the peace throughout the state, and each judge of the county court and every justice of the peace is such within his county. Any conservator of the peace has power to take all manner of bonds and recognizances from persons charged on affidavit with crimes and offenses, for their appearance in the circuit court to answer thereto, as well as for crimes and offenses committed in their presence; and if any person fail to give bond or enter into recognizance, with the sureties prescribed, when required to do so by a conservator of the peace, he shall be committed to the county jail, there to remain until he comply or be otherwise discharged by due course of law. Every bond or recognizance so taken shall be returned to the circuit court before its next term; and if any person so bound fail to appear in the circuit court, his bond or recognizance shall be adjudged forfeited, and otherwise proceeded with as provided by law."