10 S.E. 872 | N.C. | 1890
"J. W. Freeman is hereby appointed special constable. (Signed) E. H. WALKER, J. P." [Seal.]
On the trial, the justice found Allen guilty, and sentenced him to ten days' imprisonment in the county jail, and directed the special constable to take him to jail.
Freeman testified that he was specially deputized as constable to serve the warrant and to convey prisoner to jail.
The justice gave him the following mittimus:
To the Common Jailer of said County: You are hereby commanded to take the body of Abram Allen, and him safely keep in the common jail of your county until discharged according to law."NORTH CAROLINA, — Bertie County. Mittimus.
This 2 February, 1889.
(Signed) E. H. WALKER, J. P. MILES BAGLEY."
The defendant excepted to this evidence, upon the ground that (641) the mittimus did not conform to the requirements of The Code, sec. 1238. One of the justices who tried the case testified that the judgment, as originally endorsed on the warrant, sentenced Allen to be "confined in the county jail for ten ....., and pay costs," but that the sentence, as pronounced at the trial, was for "ten days," the word "days" having been inadvertently left out. The warrant and judgment were in evidence, and the judgment had been amended by the justice to read "ten days." While said Freeman was conveying the *496 prisoner (Allen) to jail, the three defendants pulled said prisoner out of the buggy in which Freeman was carrying him to jail, cut the rope with which he was tied, and set him at liberty. The defendants, it seems, introduced no testimony, but they asked the court to instruct the jury to acquit them upon the evidence, for the reason that it did not appear that Abram Allen was lawfully in custody of said Freeman. The court declined to give this instruction, and the defendants again excepted.
Verdict of guilty. Judgment and appeal.
The justice of the peace is the sole judge of the "extraordinary cases" in which he shall exercise the power of appointing a special constable under authority of The Code, sec. 645. S. v. Dula,
The other exception advanced is, that the mittimus itself is insufficient, under The Code, sec. 1238. It is defective in many respects. The jailer, it may be, would have been authorized to refuse the prisoner until a fuller and more perfect mittimus was sent. The (643) defendant certainly, if he chose, could have inquired into the legality of his detention in jail under it by a writ of habeas corpus. The latter course, in this particular instance, would have availed little, however, as the judge, upon production of the justice's judgment, must have remanded the prisoner. So far from Allen being sent to jail by parol, the sentence and the appointment of the officer to execute it are both in writing. The instruction to the officer to execute the recorded sentence was oral, and this we see done every day in the Superior Courts. Whether the mittimus was such as authorized the jailer to receive the prisoner and relieve the special officer of further responsibility, it is not material to consider here. Freeman was a duly appointed officer, charged by order of the court with the duty of taking to jail a prisoner legally sentenced thereto. Like any other officer, under such circumstances, if the mittimus were defective, he was responsible for the safekeeping of Allen till relieved by the jailer, or by further order of the court amending the mittimus, or otherwise. Had he wilfully or negligently permitted Allen to escape while in his charge he would have been criminally liable. S. v. Garrell,
In the above cited case (S. v. Dean) the mittimus was as defective as here, but the court place their decision solely on the "expiration of the deputation" to the officer. No point was made in the argument here, nor was any exception taken below, as to the justice's power to amend the judgment by adding the word "days," inadvertently omitted.
His power to do so was clear. Indeed, no objection was raised as to the validity of the sentence imposed on Allen. That could make no difference to defendants, for its legality could not be questioned in this way. S. v.Garrell,
Upon the facts, about which there is no controversy, it appears that while Allen was in the custody of a lawfully appointed special constable, and was being carried to jail under sentence from a court of competent jurisdiction, the defendants, in a high-handed manner, took the prisoner forcibly from the custody of the law and set him at liberty, without making any show or claim of right. We think there is
No error.
Cited: S. v. Black,
(645)