This case will be decided by settling the question whether Smith was a trespasser, no goods being found in the house of Simpson on the execution of the warrant. If Smith was a trespasser, then the directions given to the jury were wrong, for in that event no actual breaking was necessary to constitute him a trespasser; neither will any assent to the search being made excuse him, because Simpson was bound to submit to the warrant. As this case appears, the assent of Simpson himself would not avail Smith, because it would have been an assent to an act to which he was obliged to yield, and which he could not and ought not to resist, and consequently the assent of the uncle can have no effect.
The case turns on the innocence of Simpson. It is no excuse to Smith that he entered with the officer executing the warrant. The warrant protected the officer, but not Smith. The officer was bound to execute it. His duty compelled him so to do. In Smith it was voluntary. He was under no obligation to charge Simpson, unless he had been really guilty; and although circumstances might have been very strong, and might, in the mind of Smith, have amounted to full proof of Simpson’s guilt, yet Smith was the actor, the voluntary actor, guided by his own judgment,
The case of the excise officer, Bostock v. Saunders et al., 3 Wils. 434, 2 Bl.R. 912, has been overruled by the Court of King’s Bench in Cooper et al. v. Booth, 3 Esp. 135 (cited [1] Term 535). This last case was decided entirely on the Act, 10 Geo. I, c. 13, and is clearly distinguishable from the present case. First, by that Act a duty is imposed on an excise officer who has grounds of suspicion to lay such grounds on oath before the Commissioner of Excise. And secondly, to avoid the warrant in respect of the excise officer on the event of not finding the goods searched for, and to consider him, the officer, a trespasser by relation would repeal the Act of Parliament. These are some of Lord Mansfield’s reasons for deciding in favor of the officer, but the whole case is grounded on the Act of Parliament; and as that, in the opinion of the court, justified or excused the officer, it is not a case similar to the one before us.
According to 2 Hale P.C. 150, the officer is excused, but the narty who makes the suggestion is answerable if no goods be found, and in 2 Wils. 290, 291, it was resolved that if on a search-warrant no goods are found, the informer is a trespasser. No case has been produced, and I know of none, which excuses the person procuring the warrant. Certainly the case of excise officers depends on very different principles.
The Constitution, Art. 1, s. 6, was made to protect the rights of individuals, and to secure them from searches and seizures, except under the restrictions therein prescribed. It never was designed to enlarge the means of access, nor to excuse a person searching, if the party searched were innocent. It is a mandate to the justice; he is bound to comply with its injunctions; and perhaps I should not go too far to say that a warrant differing from the form and without the prerequisites of the Constitution would be void, and that the justice, constable and informer would all be liable in an action of trespass. However, this is not before the Court and not necessary now to be decided. It is enough to say that the Constitution has no application to the case under consideration.
Judgment reversed, Booth, C. J., Warner and Davis, J.J., concurring; Cooper, J.,contra.