163 Ky. 698 | Ky. Ct. App. | 1915
Opinion op ti-ie Court by
Affirming.
Frank S. Clark instituted this action against W. J. Hampton in the Boyd Circuit Court, alleging that the defendant, while acting as police judge of Ashland, corruptly and maliciously, without an affidavit having been filed before him, issued a warrant charging the plaintiff
The lower court sustained a demurrer to the petition, and the plaintiff having declined to plead further, the petition was dismissed; and the case is here upon appeal.
The allegation of the petition is that “without an affidavit having been filed before him as required by law” the police judge issued the warrant upon which the prisoner was brought before him.
And Section 1372, Kentucky Statutes, provides that if any officer authorized to issue warrants of arrest in felony cases does so without “having filed in his office an affidavit or information fully specifying the nature of the offense for which the warrant is issued, or unless he have personal knowledge of the commission of the offense,” he shall be subject to a fine.
The petition does not state that the officer did not have personal knowledge of the commission of the offense ; nor was it necessary that such allegation be made, for personal knowledge of the commission of the offense wKLnot justify the issual of a warrant in any case.
Section 10 of the Constitution declares that no warrant’ shall issue to search any place or seize any person or thing without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation.
And this constitutional declaration protects the citizen against warrants of arrest for trial as well as against search warrants; there must be oath or affirmation before the magistrate made, or he has no authority to issue a warrant of arrest. Myers v. People, 67 Ill., 503; State v. Wakefield, 60 Vt., 618; State v. Wimbush, 9 S. C., 309.
The fourth amendment to the Constitution of the United States provides that no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized. And this amendment has likewise been held to extend its protection against warrants of arrest for trial as well as against search warrants. Ex Parte Buford, 3 Cranch, U. S., 448; Miller v. United States, 8 Okla., 319, 57 Pac., 836; State v. Gleason, 32 Kan., 250, 4 Pac., 363; United States v. Tureaud, 20 Fed., 621; State v. Daire, 62 Wis., 305, 22 N. W., 411; Territory v. Cutinola, 4 N. M., 160, 14 Pac., 809. See also 2 R. C. L., p. 460, 12 Cyc., 291.
The Constitution does not prohibit arrests without a warrant when authorized by law. Commonwealth v. Marcum, 135 Ky., 1, 122 S. W., 215, 24 L. R. A. (N. S.),
So much of Section 31 of the Criminal Code as requires and justifies the issual of a warrant of arrest by' a magistrate when from his personal knowledge he has reasonable grounds to believe that the accused has been guilty of a public offense, is, therefore, violative of the Constitution. And a warrant issued without preliminary oath or affirmation'is unlawful and insufficient to confer upon the magistrate jurisdiction of the person of the accused. So that if a magistrate issue a warrant in a felony case upon his own personal knowledge only, and unsupported by oath or affirmation, he is liable in civil damages, although, by Section 1372, Kentucky Statutes, he is exempted from criminal liability if he have such personal knowledge.
Neither Section 10 of the Constitution nor Section 31 of the Criminal Code requires the filing of an affidavit. The requirement is that the magistrate shall have received on oath (or affirmation) such information as shall be sufficient to constitute reasonable grounds for believing that the person charged has committed the offense for which the warrant is issued. And this is what is meant by Section 1372, Kentucky Statutes, in requiring that there be filed in the office of the magistrate an affidavit or information fully specifying the nature of the offense for -which the warrant is issued. The magistrate may himself reduce to written form the information which he has received on oath or affirmation ; it need not necessarily be in the form of an affidavit. But he must have received such information upon oath or affirmation; without it he has no right to issue the warrant of arrest.
It is not necessary that such information be reduced to written form by the magistrate and filed in his office in order to avoid civil liability; but, in felony cases, he must reduce it to writing or take it in the form of an
Tbe petition having failed to allege that the police judge had received such information on oath or affirmation, the demurrer was properly sustained-,^
Judgment affirmed.