State v. . DavisState v. . Davis
- Reporters:
- ,
- Before:
- Avery
Uрon affidavit setting forth that the defendants had been guilty at and in the town of Clyde, in the county of Haywood, on or about the 12th of January, 1892, of “unlawfully and wilfully selling spirituous liquors to one J. J. Burns, the said spirituous liquors not being sold as а medicine, and the said defendants being then and there drug *732 ■gists,” the defendant had been arrested and tried before the Mayor of Clyde on a charge embodied in said affidavit of violating a town ordinance, which declared it unlawful to sell spirituous liquors in said town. It is not material whether the charge of which a Justice of the Peace has final jurisdiction is contained in the affidavit or warrant, if the affidavit referred to the warrant, and thereby make the two instruments in contemplation of law but one. State v. Sykes, 104 N. C., 694. Treating as surplusage so much of the affidavit as charges the violation of an ordinance of the town forbidding the sale of spirituous liquors within the corporate limits, it still sufficiently appeared from the affidavit that the dеfendant had committed a criminal offence ■created by a public local statute (Laws of 1889, chapter 189, § 8), which made it “unlawful for any person to sell any spirituous, vinous or malt liquors within the corpоrate limits of the said town (Clyde), except by druggists strictly for medical purposes, and then only on bona fide prescription by some legal practicing physician,” &c. It aрpearing from the affidavit that the defendants had been guilty of criminal conduct prohibited by the statutе, the officer to whom the warrant was entrusted could not refuse tt execute because the charge founded upon the information was informal or defective, but ■could justify such refusal only upon the ground that it was apparent upon the face of the process that the Mayor had no аuthority to issue it. The arrest having been lawfully made, it is too late, in the face of repeated аdjudications of this Court, to question the power of the Judge below to amend generally in his discretion bоth the warrant and affidavit. State v. Vaughan, 91 N. C., 532; State v. Crook, Ibid, 536; State v. Smith, 103 N. C., 410; State v. Sykes, supra. There is no necessity, where the affidavit is amended, that it should be werified in its amеnded form. State v. Norman, 110 N. C., 484. The solemn formality of filing an affidavit and charging that the criminal law has been violated, was an essential *733 prerequisite to the issuing, or lawful execution of the warrant, but the arrest being already а fact accomplished in accordance with the prescribed constitutional method, nеither the Constitution, nor the laws enacted in pursuance of it, made it incumbent on the Judge to dismiss the warrаnt because the ordinance was void, and discharge the defendant instead of holding him and amending the affidavit and warrant so as to’ charge another offence, of which it plainly appeаred from the warrant that the defendants had been guilty, if the proof should sustain the affiant’s information. Upon the original affidavit the Judge presiding could, in the exercise of a sound discretion, have dismissed the аppeal, because the ordinance upon which the charge was founded was void, or hе had the power to amend the affidavit and warrant so as to charge an offence growing out of the facts appearing from the affidavit and within the original jurisdiction of the Mayor, as he did, or hе might have held the. defendant in custody or under bail to await indictment upon the charge of violating sеction 3, chapter 215, of Laws of 1887, which provides that any druggist who shall sell any spirituous, vinous or malt liquors, exсept for bona fide medical purposes, and upon the prescription of a practicing physiсian, shall be fined and imprisoned at the discretion of the Court. State v. Farmer, 104 N. C., 887. True, had he adopted the third course, some question as to the costs previously incurred might have arisen, and we mention the general statute to show the sufficiency of the original affidavit to warrant the detention of the defendant in custоdy.
The defendant could not collaterally impeach the election of the officers of the town in order to bring in question the authority of the Mayor, who issued a criminal warrant and tried one aсcused of an offence within the jurisdiction of a Justice of the Peace. State v. Cooper, 101 N. C., 684. The acting Mayor, whose judicial authority and official character were recognized by the Court to which the record was certi *734 fied, and by the constable and people of the town, was at least a defacto offiсer, and as such might lawfully také cognizance of any offence committed within the corporatе limits, and which was within the jurisdiction of a Justice of the Peace. State v. Powell, 97 N. C., 417; State v. Lewis, 107 N. C., 967. It was not necessary, therefore, to have proved that the Mayor was elected in May last; it was sufficient to show that he was acting in thаt capacity, and that his official acts were acquiesced in. It would be presumed, nothing else appearing, that the provisions of the statute incorporating the town and the amendatory laws (Acts of 1889, chapter 189, and Acts of 1891, chapter 241), had been observed in so far as they provided the time and manner of holding elections for town officers.
We. think that the Judge had the power to amend, and that there was no error in any of the rulings complained of.
No Error.