Gray v. Davis

27 Conn. 447 | Conn. | 1858

Sanford, J.

This is an action of trespass for breaking into the plaintiff’s house, and taking away ajar, and a small quantity of brandy, belonging to the plaintiff. The defendant justified as the servant of a constable in the execution of a warrant directed to the officer, requiring him to search for and seize the liquor and vessel containing it, under the twelfth section of the act for the suppression of intemperance ; and upon the trial he offered in evidence a paper purporting to be the original complaint, and the warrant issued thereon, with the officer’s return of the seizure of the liquor, and the judgment of the justice.

The plaintiff objected to the reception of the papers in evidence, because they were not copies instead of original documents. The superior court permitted them to go to the jury, but instructed the jury that they afforded to the defendant no justification for the trespass complained of. We entertain no doubt but that the objection to the evidence was properly overruled.

The object being to lay before the triers the real contents of the record, it would be absurd to hold that the best possible evidence, when adduced, should be excluded, because inferior evidence, by copy, would be admissible. Mr. Green-leaf, in his Treatise on Evidence vol. 1, § 502, indeed says, “ the record itself is produced only when the case is in the same court whose record it is, or when it is the subject of proceedings in a superior court.” But he does not say, and it is obvious he does not mean, that the contents of a record can not, in any court, be proved by the original record itself if it can be produced, but only to state the manner in which such proof may be, and usually is, made. “ Copies of records are admitted as the best producible evidence, because the originals are, for security, preserved in public depositories, and can not be removed from place to place to serve a private purpose.” 1 Phil. Ev., 383, (4 Ed.) “ The reason of admitting a copy to be evidence, is the inconvenience to the public of removing such documents (records) which may be wanted in two places at the same time.” 1 Stark Ev., 151. But says the same author, “ A record may be proved, first, by mere production without more, or, secondly, by the copy.” Ib.

The warrant then, being properly in evidence before the jury, the jury should have been instructed that, notwithstanding the plaintiff’s objections to it, it was sufficient to justify the entry and seizure complained of.

It is claimed that the record is imperfect, or incomplete} inasmuch as it does not set forth a notice, such as is required by the thirteenth section of the act, and the evidence that such notice was served as the act requires. But the justice found, and his record states, that Henry Gray, the person charged in the complaint as the owner or keeper of the liquor, and all others concerned, were duly, (that is, as the law requires,) summoned to appear,” &c. That is enough. The law indeed requires that “ the justice shall cause a notice to be posted,” &c., but does not require that he shall cause it to be done by the hands of any officer or particular agent. The form of notice which the act prescribes is not that of a writ, or returnable process of any kind, and contains no direction to an officer for service, and no command, to return it.

But the question is not whether the proceedings subsequent to the return of the warrant were regular or not, but whether the warrant at the time of its execution was a valid precept, which the officer was bound to obey. If it was, the officer, and the defendant in his service, were justified in executing it, whatever irregularities might have intervened in the proceedings after its return. Watson v. Watson, 9 Conn., 140. Grumon v. Raymond, 1 id., 40.

The only objection made to the warrant is, that it directs the search to be made in several buildings, when it should have been confined to one. And we are referred to the 8th section of the first article of the constitution of this state, in support of this objection; and to a like provision in the constitution of the United States. The articles referred to, provide—“that the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches or seizures; and [that] no warrant to search any place or seize any peí-son or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” The constitutional provision just recited, was obviously intended mainly for the security of the citizen, that his possessions might not be wantonly invaded, at the discretion, caprice or malice, either of private individuals, or of the ministers of the law. But a separate warrant for each suspected place to be searched is not called for, either by the letter or spirit of the constitution, nor requisite for the protection of the public peace, or individual security. To require it would occasion useless delay and expense, and tend to defeat the salutary objects of the law.

But the plaintiff claims, that the warrant in this case was not directed against, and did not authorize the seizure of, Ms liquor, nor an entry into any house in Ais possession, but only the seizure of liquors owned or kept, and intended to be sold, by Henry Gray, and an entry into a dwelling-house occupied by the family of F. D. Hamilton and others, as stated in said warrant;—the substance of the claim being that what is said in the warrant, regarding the ownership and custody of the liquors, and the occupancy of the dwelling-house, is matter of description, essential to the identification of the property, and? if untrue in fact, defeats the justification.

And we remark that, in regard to the only issue to be tried upon the return of the warrant, to wit, whether the liquor seized was kept for sale in violation of the law or not, it was altogether immaterial whether Henry Gray, or the defendant, or some other person, owned or kept it, and equally immaterial whether the family of F. D. Hamilton and others, or the plaintiff alone, or some other person, occupied the dwelling-house where that liquor was found and seized. Unless therefore these allegations form essential parts of the description of the property, this claim of the plaintiff can not be sustained.

The complaint, which is recited in the warrant, charges that in a certain place in Danbury, “to wit, * * * *

also at a dwelling house situate in an easterly direction from the barn above described, on the west side of the highway leading from the grave-yard near said pond to Miry Brook, (a place so called,) said dwelling-house being at or near the corner where the road leading to the pond intersects said highway, and the same is occupied by the family of F. D. Hamilton and others,” &e., “certain liquors, to wit, thirty gallons rum, thirty gallons wine, thirty gallons gin, thirty gallons brandy, and thirty gallons other spirits, are owned or kept in each of said described buildings, by the said Henry Gray of the town of Danbury aforesaid, and are intended by said Gray to be sold in violation of the act of 1854,” &c. Here, there is no connection whatever, in sense, between the description, properly so called, of the dwelling-house, and the description of its occupants. The description of the house is particular and complete, and, for any thing that appears, entirely accurate, and amply adequate for its identification, and we think the certainty and sufficiency of that description in no degree affected by the erroneous and immaterial averment in relation to the occupants of the house. So in regard to the liquor. The allegations relating to its ownership and custody, and the intent with which it was kept, make no part of its description. And we think the description given in the warrant, though general, is sufficient—it no where, appearing that, at the time the complaint was made and the warrant issued, it might have been made more particular and exact.

The language of the constitution is not, that (under all circumstances, in every case,) the things shall be described with such particularity and accuracy as to preclude the possibility of mistake, but only “asnearly as may be”—that is, as nearly as the circumstances will admit. In general, the place may, and therefore must, be described with such reasonable particularity as to make it distinguishable from all other places. So the owner of stolen goods, which have marks, natural or artificial, by which the goods may be distinguished and identified, may perhaps be presumed cognizant of those marks; these may be, therefore, generally specified in the warrant issued at his instance. But suppose the article has no mark by which it can be identified, as wheat in bulk, would it be possible, until after access to the wheat obtained by virtue of the warrant, to describe it otherwise than by quantity and name? How would it aid the officer in his duty, to add to the description of such an article, that it was kept and intended to be used or sold by an individual named? Our statute for the prevention of gaming, (Rev. Stat., tit. 22, § 4,) provides that whenever any informing officer, or the selectmen of any town,” &c. “shall give information to two justices, that he or they have cause to suspect that any billiard table or E. O. table is kept or concealed in any house,” &e,, “such justices may issue their warrant, directed to any proper officer, requiring him to enter such house and to search for such table, and on finding the same to seize and carry it away,” &c. So by statute (Rev. Stat, tit. 6, § 189,) “upon complaint by a grand) uror, &c. to a judge of the supreme court of errors, that he or they suspect, or have cause to suspect, that any house,” &e. “is used for the purpose of printing, blading, depositing,” &c. “any book, print,” &c. “of an obscene or licentious character, or as a common gaming house,” &e., “such judge may issue his warrant commanding any proper officer to enter into any such house,” &c. “ and also to take into his custody all the materials and instruments for gaming as aforesaid, and all such obscene books and licentious prints,” fee. “and to keep the same that they may be forthcoming to be dealt with and disposed of according to law.’’ How could the billiard or E. O. table be described but by its general name ? Suppose that it was stated in the warrant that the table was owned or kept by A B, would the officer be liable in trespass for taking it, if it should finally turn out that it was in fact owned and kept, not by A B but by C B? And would it not be sufficient in the warrant, to describe the things spoken of in the last mentioned statute, by their general names, as implements for gaming, and books and prints, fee. of an obscene and licentious character? The designation of the place, indeed, operates to circumscribe, by visible, tangible and certain boundaries, the limits of the search, and so makes an element in, or, more properly, aids, the description of the thing sought for. But the allegations regarding ownership, custody, and criminal intent, are of an entirely different character. They are averments of the existence of facts, but not directly, or by operation, in any sense descriptive of the thing to which those facts relate.

Suppose the warrant described the liquor by specific name and quantity, and the vessel containing it by size, form, material, color, artificial marks, fee. with “certainty to a certain intent in every particular,” but had added, as in this warrant, that the liquor was owned or kept and intended to be sold by H. G. And suppose that the officer found, in the place designated in his warrant, a cask of liquor answering to this description in every particular, but in the custody of a stranger who claimed to be its owner, or in the actual custody of the plaintiff, and intended to be sold by him. Or suppose the officer finds, in the place designated, a cask of liquor answering to the description in the warrant, but not in the visible custody or possession of any one. Could the officer be subjected as a trespasser for taking the cask of liquor,in either of the cases put, if it should afterwards appear that the aliegatioos in his warrant regarding ownership, custody, or criminal intent, were false? We think he could not.

Upon the whole, we think these allegations no part of the description of the liquor, that it is immaterial whether they were true or false, that the description of the liquor was sufficient,, and consequently that the charge to the jury was wrong. We therefore advise a new trial.

lo this opinion the other judges concurred.

New trial advised.