Frazier v. Turner

76 Wis. 562 | Wis. | 1890

Taylob, J.

On this appeal it is contended by the learned counsel for the plaintiff and respondent that the complaint and warrant do not state facts sufficient-to show that the plaintiff had committed any crime known to the law; that the warrant was absolutely void upon its face, and was therefore no justification to the officer serving the same for making the arrest complained of; and it is also insisted that there is sufficient evidence to show that the appellants, Martha E- and David Turner, directed the officer serving such void warrant to make such arrest, and are therefore liable in the law for such unlawful arrest. On the part of the appellants, the counsel claim that the warrant was not void on its face, and, if it was voidable, it could have been amended by the justice on the return of the warrant, on the application of the state.

We think there can be no doubt but that the complaint does not state facts showing that the plaintiff had committed any crime, and that the warrant was void on its face for the same reason. The warrant was void because it does not state that the thing alleged to have been stolen was of any value.

To the claim that the warrant was amendable, it is answered, first, that it was not amended, and that no application to amend the same was made, in the proceedings in the justice’s court; and, second, that the defect in the complaint and warrant were not amendable, under secs. 4703, 4742, R. S. 1878. The value of the thing alleged to have been stolen is a material allegation, under our statute, as different degrees of punishment are prescribed for the larceny of property, depending upon such value. See sec. 4415, R. S. 1878. And an information, warrant, or complaint which does not state the value of the thing stolen, when the punishment of the crime depends upon such value, is clearly a substantial defect, and renders the warrant or information void and wholly insufficient to support any conviction or judgment thereon. 2 Bish. Crim. Proc. §§ 713, 714, 736; Hope v. Comm. 9 Met. 134; Wilson v. State, 1 Port. (Ala.), 118; State v. Daniels, 32 Mo. 558; Johnson v. State, 29 Tex. 492; Steuer v. State, 59 Wis. 472; Gelzenleuchter v. Niemeyer, 64 Wis. 316.

We think the defect in this complaint and warrant was such as rendered all proceedings in the case void, and the arrest thereon unlawful, and was not amendable under said sec. 4703, R. S., so as to legalize the arrest and imprisonment thereunder. Whether the complaint and warrant were void for not sufficiently describing the note need not be considered in this case, and it may be admitted that such general description was sufficient.

• The warrant being void on its face, was no justification for the arrest by the deputy-sheriff; and the appellants having delivered the void warrant to the sheriff, and having directed him to make the arrest on such void warrant, are equally liable with the sheriff. This was fully discussed and decided by this court in the ca,se of Gelzenleuchter v. Niemeyer, 64 Wis. 316. There is as much evidence of the participation of the appellants in making the arrest in this case as in the case last above cited. The question as to whether the appellants participated in procuring the arrest of the respondent under the void warrant was properly submitted to the jury by the learned circuit judge.

There was no error in excluding the evidence offered by the appellants that they had submitted the facts in the case to the district attorney, and acted under his advice. Having participated in the arrest of the plaintiff under a void warrant, they are equally liable as the officer making such arrest.

By the Court.— The judgment of the circuit court is affirmed.