77 Vt. 255 | Vt. | 1905
This action is trover for one barrel of ale. The defendant admitted the taking of the property, but justified the act upon the ground that it was by virtue of a search warrant directed to him- as a police officer of the city of Barre by a justice of the peace. The trial court found the facts set out in the plea and notice and further found that the complainant was one Charles Zanieoni, who was a native of Italy and had taken- no- steps towards naturalization other than that he had filed in the City Court of the city of Barre, which is a court of record having a seal, his intention to become a citizen of the United States; that the ale was found by the defendant in circumstances which warranted him- in believing that it was kept for sale or other unlawful disposition, and that he believed that the complainant was a citizen of the United States. The complaint recited that the complainant “in his own proper person and upon his oath of office” made complaint, etc.
It is the law that a ministerial officer is protected in the execution of process, when it issues from a court of general jurisdiction, although such court, in fact, has no authority in the particular case, provided it appears upon the face of the process that the court has jurisdiction, and nothing appears to apprise the officer that the court has no authority. Blit it is
It is not contended that the justice could issue a warrant without a complaint being made to him in writing by am officer or a private citizen, upon oath, in compliance with Sec. 61, No. 90, Acts of 1902. It is within his jurisdiction to issue his warrant for search and seizure, but he must be moved to issue it by complaint made pursuant to' the statute. He could not have issued the warrant of his own motion.
It cannot be maintained that this process was regular upon its face. Zanleoni professed to make complaint upon his. oath of office but did not disclose the office. If he intended to complain as a private citizen, he did not so declare; therefore the justice of the peace had no more authority to issue the warrant than he would have, had if the complaint had not been signed by any person. See Goodell v. Tower, reported in this volume, 58 Atl. 790, and cases cited in the opinion.
As it does not appear upon the face of the process that Zanleoni had any authority to make the complaint as state’s attorney, city attorney, as a city grand juror, nor as a private citizen, the process was void and afforded the defendant no authority for serving it.
Judgment reversed and cause remanded.
