Ezra Humes v. Samuel Taber

The opinion of the Court was delivered by

Greene, C. J.

The first question in this case arises upon the sufficiency of the complaint, upon which the search warrant issued.

The statute requires the complainant to make oath or affirmation “that he believes” the stolen goods “are concealed in some house or place in the county where such complaint shall be made, and in such complaint particularly described.”

The power given to the justice under this statute is extraordinary, though necessary. It is a power to grant upon an ex parte statement, under oath, a warrant authorizing the sheriff and his deputies and assistants, to break the doors, to enter' the private apartments, and search the closets, bureaus, &c., of a citizen for stolen goods, and to bring the persons in whose possession they may be found before the magistrates.

It is the duty of the Court to see that this poiVer is exercised in the mode provided by the statute.

The language of the complaint is, that the complainant “has cause to suspect, and does suspect,” &■c.

We think this is insufficient. The statute does not authorize a warrant to issue upon the suspicion of the complainant.

Suspicion may be upon very slight grounds, and imports a less degree of certainty than belief.

Another difficulty in this complaint exists in the description given of the place to be searched. The statute requires that the “house or place” in which the stolen goods are believed to be concealed,” shall be “particularly described,” and that the magistrate shall command the sheriff diligently to search “ the house or place therein described.”

The description in the complaint is “ the premises of Hiram Ide and Henry Ide.” It does not name the county or town in which the premises lie, or whether they are a dwelling house or store, or building of any kind. Now, although the complainant afterwards in his prayer for process, prays that process may issue to search “ the houses and buildings” of Hiram Ide and Henry Ide, yet this description does not aid the defendant in the stating part of the complaint. It is to this part that the magistrate must look for authority in issuing his precept. We think the complaint is defective in these two particulars.

The duty of the magistrate is judicial, not ministerial. He is to judge whether upon the complaint made in conformity to the statute, a warrant ought to issue.

But if the warrant be legal in form, and issued from a magistrate having jurisdiction over the subject matter, the officer is not answerable for any defects in the complaint. He is only obliged to notice defects and irregularities upon the face of the warrant; if it is correct, so far he has sufficient authority for its service. He need not go behind it to look for illegalities not'apparent upon its face.

The warrant commands the sheriff to search the dwelling houses of Hiram Ide and Henry Ide. Upon its face, we think it is legal.

The next question is, whose premises — whose dwelling houses are to be searched ? What is meant by the dwelling houses of Henry Ide and Hiram Ide ?

A majority of the Court think, that in the sense of this warrant, the dwelling house of a man is the house in which he dwells. He may own a dozen houses, and live in a hired house himself. A warrant to search the dwelling house of such a person, would confer an authority to search the house in which he dwelt, but not the houses which he owned and rented to other persons.

This is not only the reasonable and natural construe tion of the language of the warrant, but great inconvenience would follow if a different construction should prevail.

If the direction to search the premises of Henry Ide and Hiram Ide, means the premises owned by them— how is the officer to ascertain what premises they do own ? Must he go to the record for that purpose ? and then the deeds might not be recorded. Suppose they owned a dozen houses, are they all to be searched ?

Again, — if on the search he finds the stolen goods in the house, he is required by the warrant to bring the person in whose possession he finds them before the magistrate.

The statute looks to the occupant of the house as the guilty party, and who ought, therefore, to be named in the warrant.

But upon the construction contended for by the defendant’s counsel, the persons charged are not named in the warrant.

We think, therefore, that under this warrant the officer was authorized to search the dwelling house in which Hiram Ide and Henry Ide dwelt, but not the house which was occupied by the plaintiff.

The warrant, therefore, is no justification, and the charge of the Court in this particular, and also in relation to the insufficiency of the complaint, is correct.

The next ground of defence was, that the defendant entered and searched the dwelling house of the plaintiff by the license and permission of his wife.

The charge of the Court upon this part of the case was pro-forma, and to the effect, that the law implied an authority in the wife in the absence of the husband, to license a search of his house for stolen goods.

We are are satisfied the charge in this particular was incorrect. The law implies no such authority. Undoubtedly, the wife’s authority extends to the rendering the ordinary civilities of life. If she invite a neighbor, friend, or even stranger, to enter the house in the way of hospitality, such invitation would, under ordinary circumstances, be a valid license so to do.

But to imply an authority to the extent contended for by the defendant in the present case, would be dangerous. An artful man might impose on the wife in the absence of the husband, and thus, for malicious and unlawful purposes, obtain from her a license to search the desks and private papers of her husband.

No case has been cited by the counsel for the defendant which gives any countenance to such a doctrine ; it is unsupported by principle, and would be mischievous in its consequences.

This view of the law renders it unnecessary to consider the other grounds on which the motion for a new trial is placed, as all the evidence in relation to the license and consent by the wife was improperly admitted,

Motion denied.