24 N.J.L. 30 | N.J. | 1853
Richard Francisco, the plaintiff in error, was indicted at the Passaic Oyer and Terminer in September term, 1848, for an assault and battery upon, and false imprisonment of, one John S. Darcy, juu. He was tried in April term, 1849, and found guilty of the assault and false imprisonment, but not of the battery.
The facts of the case, as they appeared in evidence, were briefly these: The defendant was a constable of Essex county, and had in his hands a warrant, issued by Justice Plume, of that county, for the arrest of Darcy, who resided in Passaic county. Francisco went into Passaic, and obtained an endorsement on the warrant, under the hand of a justice in that county, pursuant to the statute, Rev. Stat. 227, § 12, and thereupon arrested Darcy; refused to take him before the justice who endorsed the warrant, or any justice in Passaic, carried him to Justice Plume, in Essex county, late at night, and took him from thence to his own home, and lodged him in his house until morning. This was the assault and imprisonment for which the defendant was convicted. It not appearing that any corporal force was used in carrying the said Darcy to Essex, the jury did not find the battery.
The provisions of the statute, above referred to, are very plain. A constable going with a process from one county to arrest a person in another county, is out of his territorial jurisdiction the moment he crosses the comity line, and must invoke the aid of the magistracy of such foreign county before he can proceed a step in the execution of his writ. The endorsement of the writ by a magistrate of such county simply confers upon him the powers prescribed by the statute. These are “to apprehend and carry such offender before the justice or justices who endorsed such warrant, or some other justice or justices of such other county where such warrant was endorsed,” in order, if the offence is bailable, that the prisoner
The counsel for Francisco insisted that the warrant having been properly endorsed, the arrest under it was legal; and Darcy being legally in custody, the carrying him out of the county and detaining him was, at most, but an abuse of authority, for which the officer is only liable to a civil suit. But it is a sufficient answer to say, that the act complained of in this case was not done under color of authority. The process, as endorsed, authorized him to do one thing, and he did a totally different thing. It authorized him to arrest Darcy, and take him before a magistrate in Passaic, and, instead of doing that, he arrested and carried him into Essex. He had no more right to do so than he had to carry him out of the state or the country, and the moment he exceeded his authority he made himself a wrong-doer, ab initio, and liable to a criminal, as well as a civil prosecution; for an illegal interference with the liberty of the citizen is an offence against the state. Arch. Crim. Law 254-5.
Another error alleged is, that the indictment charges several misdemeanors in a single count, to wit, an assault and battery and false imprisonment. There is nothing in this. The assault, the battery, the false imprisonment, though in themselves separately considered they are distinct offences, yet collectively they constitute but one offence — the seizure and forcible detention of a person illegally and against his will is technically such an offence. It is held that a man may be indicted for the
As to the other points, it is equally clear that there is no error. The verdict was, that the defendant was guilty of the assault and false imprisonment, and not of the battery; and this is sufficient. An assault and false imprisonment does not necessarily include a battery, and the jury may find the defendant guilty of part of the offence, and not guilty as to the rest. 1 Ch. Crim. Law 250, 51. 1 Russell on Crimes 607.
It appears, by the record, that the indictment was found in the Passaic Oyer and Terminer and General Jail Delivery in September term, 1848, and the case was continued from term to term until it was finally tried; and it is insisted that there are no terms of the said court, strictly speaking. The statutes of this state, however, establish “terms” for this court, and this is a conclusive answer to the objection. Rev. St. 253; Pamph. L. 1850, p. 115; P. L. 1851, p. 317.
Judgment affirmed.
