Chipman v. Bates, 15 Vt. 51

Chipman v. Bates

15 Vt. 51 | Vt. | 1843

The opinion of the court was delivered by

Williams, Ch. J.

The third count in the declaration is in trespass for breaking and entering the dwelling-house of *59the plaintiff. The plea justifies the breaking, &c., under a mi • i ♦ i search warrant. This plea is demurred to.

A warrant of this description is recognized both by our constitution and laws, and the authority of a justice of the , , , . . peace, to issue such a warrant has never been questioned. The constitution requires, that such warrants shall not issue, without oath or affirmation first made, affording sufficient foundation for them : and the oath must disclose that goods have been stolen, and that the applicant suspects they are concealed in a place, which he wishes to have searched. We do not discover either from the nature of the process, or from the forms, that it is" necessary, that any complaint should be signed by the applicant, nor that any minute should be made of the day, month, and year, when presented; or that any recognizance for cost should be given, or that it should be returned, if the goods are not found. ■ Indeed, these requirements are only necessary, when a complaint is made, which is intended to be the incipient step, in a prosecution against any one for an offence. The object of a search warrant is, to obtain the goods, and to bring the person, in whose custody they are found, either to be recognized as a witness, or to be subject to such further proceedings as the ends of justice may require. The magistrate must determine whether there are sufficient grounds to require the issuing of the warrant; and these grounds need not, and cannot well be stated, in a plea justifying proceedings under the warrant. The mere formal objections to the validity of the plea have not, therefore, stood in the way of our determining its sufficiency on its merits.

The main and important question is, whether, as it is not stated in the plea, that the stolen goods were found, the warrant will justify the person who procured it to be issued.

The authority of a sheriff, or other officer, in the execution of a search warrant is, to enter the house in the day time, the doors being open and make search for stolen goods; and thus far, he has the same authority as he has in the service of civil process; by virtue of-which he may peaceably enter the dwelling house, to serve the same, the doors being open. He may, however, do something more to execute a search warrant. He may break open the doors to execute the same, if admittance is denied,' and whether the *60goods are found or not, the officer and his assistants are justified. But, according to the opinion of Lord Hale, the Party who prays it out, is liable in an action of trespass, if the goods are not found. And indeed, it would seem to be reasonable, that, as in every case, a person who is proceeded against, on the complaint of a private individual, is to have indemnity for his costs, so in this case, he should have redress for any injury he may sustain, if the complaint is unfounded, without any inquiry as to the motives which led to the prosecution, except so far as they might enhance or lessen the damages. The opinion of Lord Hale has been questioned and directly overruled in the case of Beatty v. Perkins, 6 Wendell, 382; and were it necessary, in this case, to reject the authority of Lord Hale, and adopt the principle of the case last mentioned, the court are divided in opinion, and this cause would be postponed for further argument. I, for one, should be disposed to recognize this opinion of Hale, as the safer and better law, and, indeed, as the settled doctrines of the common law, from which we are not at liberty to depart.

Lord Hale says, 2 P. C. 151, “ Whether the stolen ' goods are in the suspected place or not, the officer and his ' assistants, in the day time, may enter per ostia apertia, to ' make search ; and it is justifiable-by this warrant. If the ' door be shut, the officer, after demand to open it and refu- •' sal, may justify breaking the door whether the stolen goods ‘ are there or not; but as to the party, upon whose suggestion the warrant issued, the breaking the door is, in eventu, ‘ lawful or unlawful; viz., lawful, if the goods are there, ‘ unlawful if they are not there.” From this opinion it seems the party is only liable, when the doors are forcibly broken open; and there can be no good reason why, as to the officer and party, the entry without force, the doors being open, should not be justified, as it would be, in case the officer entered to serve civil process. The owner of a dwelling-house has the privilege of closing his doors, to protect his family in every case, except when the administration of public justice requires that they should be opened, even against his will. The reason given for this, is, “ that the ' family within doors shall not be left naked and exposed to ' robbers from without.” But if his doors are left open, he *61permits them to be thus exposed, and every part of his dwelling-house is within the precinct of an officer, who has either civil or criminal process to be executed therein. In the plea in this case, it is averred that the entry was peaceably made, the doors being open ; and any forcible breaking open of any doors is denied; and, on this ground, we are of opinion that it discloses a sufficient justification. The judgment of the county court is, therefore, reversed, and judgment must be rendered for the defendant to recover his cost, as the other issues were found in his favor in the court below.