128 Mass. 72 | Mass. | 1880
The search-warrant in this case recites that the complaint was made on the twenty-fourth day of September, 1878, and the complaint alleges that the liquors named in it were kept for unlawful sale on the twenty-fourth day of September, 1878, but the certificate of the magistrate that the complaint was sworn to, and of probable cause to believe it to be true, bears date of “ this twenty-fourth day of September in the year one thousand eight hundred and seventy-
The claimant contends that the proceedings ought to be dismissed, on the ground that the complaint appears to have been sworn to in the year 1870, before the District Court, to the special justice of which it is addressed, was established. This position is not tenable. The statute requires that the complaint shall be made on oath or affirmation, and that the magistrate to whom it is made shall be satisfied that there is probable cause to believe it to be true, in order to justify the issuing of a search-warrant. St. 1876, e. 162, § 1. It does not provide that the only evidence of the time when the complaint is made and sworn to shall be found in the jurat affixed to it. In the case at bar, it is probable, from an inspection of the complaint, that it was not sworn to in the year 1870, because the illegal act set forth in it is alleged to have been committed in the year 1878, and because the court, to the special justice of which it is addressed, was not created till the year 1874. In the absence of other evidence as to the time when the oath was made, it would not be proper to sustain the proceedings merely on the strength of this probability. But as it further appears from the recital in the warrant, signed by the same magistrate who signed the jurat, that the complaint was made on oath on the twenty-fourth day of September in the year 1878, and the statute, in addition to requiring that the complaint be made on oath or affirmation, requires that the
The claimant further contends that the proceedings should be dismissed, because the notice to the claimant recites that the warrant was issued by the First District Court of Bristol, at the second session thereof, and was not returned to the court at that session, but to the court at Taunton. He contends that, as the St. of 1877, e. 189, provides for a daily session of the court at Attleborough, to be held by one of the special justices for the transaction of criminal business, warrants issued by the court at such session cannot lawfully be returned to the court sitting at Taunton. We are not of that opinion. The provision for the session at Attleborough is not the creation of a new court; it is only an enlargement of the power of the existing court. There is but one clerk. The record is kept at Taunton, and we know of no reason why a warrant issued by the court at the special session may not properly be returned to the court at Taunton.
Besides, the St. of 1874, c. 293, which created the First, Second and Third District Courts of Bristol County, provides in § 5 that either of the justices of said courts may issue warrants in all proper cases. This authorizes the special justices to issue their own warrants, returnable to their respective courts. The warrant in the case at bar was the warrant of the special justice, under his hand and seal, not the warrant of the court, and was