59 Vt. 661 | Vt. | 1887
The opinion of the court was delivered by
This was a complaint by a private prosecutrix for breach of the peace. The motion to quash was put on two grounds, viz. : first, that the prosecutrix did not make oath to the complaint; second, that no certificate of an oath was appended to the complaint before arrest of the respondent under the warrant.
As to the first point, it appeal’s that an oath was taken, but it was by an officer authorized by statute to administer oiiths R. L., section 4555—other than the magistrate who issued the warrant. The constitution, ch. 1, article 11, forbids the issuing of any warrant without oath or affirmation first made. State Treasurer v. Rice, 11 Vt. 339. Must such oath be. taken before the magistrate issuing the warrant, or may it be taken before another magistrate ? The statutes are silent on the point. The -substantial thing required in the constitu
The next objection is that there was no certificate of the oath to the complaint. It is urged, in answer, that this was a mere formal defect, and was amendable under section 1642, R. L. That section provides that formal defects may be amended under demurrers and motions to quash before the jury is sworn.
The statutes neither require the oath to be appended or certified, nor do they prescribe a form of complaint. The oath had been taken, in fact, prior to the warrant.
In State v. J. H. 1 Tyler, 444, it was held, under a motion to quash, that nothing short of the magistrate’s certificate can be sufficient evidence that the oath was administered; and that case is relied upon by this respondent. The case contains no discussion by the court. The question was not raised before the magistrate who issued the warrant, but in the County Court. We do not understand it was a decision that an amendment of the complaint could not have been allowed by the magistrate when the respondent was before him, or even by the County Court when the motion to quash was made, so as to show- an oath was taken if such had been
Judgment affirmed, and cause remanded.