76 N.C. 197 | N.C. | 1877
Any officer in the State required to take an oath of office who shall wilfully omit, neglect or refuse to discharge any of the duties of his office, shall be guilty of a *198 misdemeanor. Bat. Rev. ch. 32, § 107. This statute embraces the offence with which the defendant was charged and convicted, to-wit; neglecting and refusing as Constable to execute a Peace Warrant issued and delivered to him by a Justice of the Peace within his own county.
The defence insisted on is that as it does not appear that the warrant was issued on oath nor on view of the Justice it is void and the officer was not bound to execute it.
An officer acting under void process is a trespasser and must take notice of its character at his own peril. All persons must take notice whether those under whose authority they act could grant such authority.
A constable need not obey a warrant for a matter not within the jurisdiction of the magistrate but when there is jurisdiction and the warrant is not otherwise void, he as a ministerial officer is obliged to execute it and of course must be justified by it. He cannot inquire upon what evidence the judicial officer proceeded nor into the regularity of his decision. Welch v. Scott, 5 Ire 72. A magistrate should not issue a warrant except on oath or super visum, and if he does and innocent parties are arrested, he would be liable in damages to such parties; but these are considerations for the Justice and not for the Constable. In this case there is no doubt about the jurisdiction of the Justice.
There is no error. Let this be certified to the end that further proceedings may be had according to law.
PER CURIAM. Judgment affirmed. *199