Johnson v. CommonwealthJohnson v. Commonwealth
- Reporters:
- , ,
- Before:
- Hobson
Opinion of the Court by
Hobson, Commissioner—Affirming.
Willard Johnson was indicted in the Pike circuit court for the offense of unlawfully manufacturing spirituous liquors. On the trial of thе case the jury found him guilty and fixed his punishment at a fine of $500.00 and six months ’ imprisonment in the county jail. He appeаls.
The officers testified that they went to his place under a search warrant and got a still out from under thе hearth; they found two barrels of beer and a complete outfit under his floor. The search warrant wаs produced in evidence. It was regular on its face with this exception, the officer signed it thus: “Franklin Greеr.” It appeared that Franklin Greer was then a justice of the peace of Pike county and as such issued the warant. He was then permitted by the circuit court, over the de *55 fend ant’s objection, to аmend the warrant by adding after his signature this: “J. P. P. C.” He testified that he issued the warrant upon an affidavit filed before-him аnd by oversight left off his official title in signing the warrant. He was then aslced on cross-examination: “Where is that аffidavit?” and he said “At home; I did not know that this ease came up for trial today.” The defendant’s attorney then asked that the magistrate be required to send and get the affidavit and let it be made a part of the record. To this the Commonwealth objected and the court overruled the motion, to which the defendant excepted.
Only two questions are made on the appeal: (1) The search warrant was void bеcause not signed officially by the magistrate. (2) The court erred in not requiring the magistrate to producе the affidavit on which the warrant was issued.
1. In Siler v. Ward, 1 Carolina Law Repository 548, the warrant was signed by the magistrаte in his proper name but nothing- was annexed to the signature denoting the act to be official. Holding thе warrant good the court said:
“Where an act is done by a person, which is referable either to his natural or political capacity, certainty requires that it should appear in the act itself, thаt it was done in his political capacity, to make it an official act. But where the act is pеculiar to his political capacity, there is no necessity of a declaration that it is done in his official capacity, for the act itself so declares. The writing offered in evidence in this cаse is peculiar to the official capacity of Mr. Smith; it was, therefore, entirely unnecessary for him further to declare in what capacitv he acted it. It would be perfect tautology to do it. ’ ’
By sеction 378, Kentucky Statutes, the orders of the court entered on the order book shall be signed by the prеsiding judge. By section 337, Civil Code, the bill of exceptions shall be signed by the judge. But if the judge who signs the order book or bill of exceptions, should fail to add the word judge after his name, the presumption would be that he signed in his offiсial capacity. In fact the word judge is often omitted after ‘the signature in such cases, but the omission is immаterial,‘for he is authorized to sign the record only in his official capacity and it cannot be prеsumed he intended to do a vain thing
*56 The signature of the officer in the writ wasi necessary to show that it was issued by рroper authority. If the letters “J. P. P. C.,” meaning justice of the peace for Pike county, had been added, no complaint would have been made, but these letters would only show the character in which the оfficer acted, and as he had no authority to issue a search warrant, except as a justice of the peace for Pike county, and should be presumed to have done his duty, the omission of thesе letters in no way changed the legal effect of the writing. The defendant well knew the magistrate and his offiсial character. Plainly no substantial right of his was prejudiced, and by the express provision of the Codе no error or defect is ground for the reversal of a judgment unless prejudicial to the substantial rights of the defendant. The opinion of this court in Botts v. Williams, 5 J. J. M. 62, is in line with the decision in the North Carolina case.
The court did not err in allowing the magistrate to amend his signature by adding the letters “J. P. P. C.” to it. The entire tr.end of modern authority is to the effect that such amendments may be allowed in the case of executions or attachments, and there no substantial reason why the same rule should not apply to such warrants. The amendment was unnecessary but did no harm. Whiting v. Barbee, 12 Ark. 421, 32 Cyc. 441; 1 Freeman on Executions, section 69; Durham v. Heaton, 81 Am. Dec. 275.
2. The process was fair on its face. The burden was on the defendant to show its invalidity. Terrell v. Com., 196 Ky. 228; Gray v. Com., 198 Ky. 610; Abraham v. Com., 202 Ky. 491. There is nothing in the record to shоw that the affidavit filed before the magistrate, if produced, would show anything material in any way in this case. There is no avowal as. to its contents and if produced it might have left the case just as it stood. There can be no reversal in such a case unless it appears that the substantial rights of the defendant werе prejudiced. So far as appears no right of his was affected in any way by the failure to produсe the affidavit. Pie had taken out no process requiring its production. He did not ask a continuance, and even in his motion for a new trial he made no showing’ that the affidavit contained anything material to his defense or was in anywise defective.
Judgment affirmed.