
    COMFORT a. FULTON.
    
      Supreme Court, Third District ;
    
    
      General Term, March, 1861.
    
    False Imprisonment.—Evidence necessary to warrant Arrest.—Criminal Law.
    Severing and taking away by one act, growing crops to an amount less than $25 in value, is not a criminal offence.
    A magistrate has no authority to issue a warrant for arrest in a criminal case upon a complaint, the facts of which are stated upon information and belief, if the at- ' tendance of the person from whom the information was derived can be procured. Whether he has such authority, when the attendance of such person cannot be procured,—Query ?
    
    Where a person has been arrested upon a criminal charge without any competent evidence of his guilt, the magistrate and prosecutor are jointly liable to an action for false imprisonment.
    Appeal from a judgment on a verdict.
    This was an action brought by Andrew Comfort against Philip F. Fulton and Henry Soules, to recover damages for an alleged false imprisonment.
    In October, 1859, Soules, one of the defendants, being then a justice of the peace, issued a criminal warrant for the arrest of the plaintiff, upon the application of the other defendant, Fulton. On this application Fulton presented a written complaint alleging that a quantity of potatoes, worth three dollars, had been stolen from him, and that he had reason to suspect the plaintiff of having stolen them. Being orally examined by the justice, he státéd that the reason for his suspicion was, that his own son informed him that he had seen the plaintiff digging potatoes out of his father’s ground, and .carrying them off. On this evidence the plaintiff was arrested, tried before the justice and a jury, and finally acquitted.
    He then brought this action against the j ustice and prosecutor for false'imprisonment, and recovered a verdict of $50 damages. From the judgment entered thereon the defendants appealed.
    
      A. C. Niven, for the appellants.
    —I. It will be observed that this is not a suit brought for malicious prosecution, on account of the want of probable cause. It being for false imprisonment, it must be made to appear that the. defendant Soules wrongfully issued the warrant on which the plaintiff was arrested, and that for such wrongful act,«not only he, but the complainant also, is liable to this action. It is claimed with great confidence (yet with all due deference to the opinion of his honor the justice, who presided at the circuit), that the defendant Fulton should not he made liable in a case like this. It is conceded that the client in civil cases may be responsible for the acts of his attorney, in issuing process; and that an action of false imprisonment may be maintained against them jointly: but their joint liability is founded on the theory that the attorney and his client are one and the same, and therefore are equally responsible in regard to the wrongful act. Not so in initiating criminal proceedings, where a crime has been actually perpetrated. It would be repugnant to public policy to make a person liable in an action for false imprisonment, who has knowledge of the commission of crime, and goes to a magistrate and makes complaint that a crime has been committed, and states his reasons for suspecting the person against whom the complaint is preferred. Grime will go unpunished if the complainant is to be made liable for an error of the magistrate, either in the form of a warrant, or in an adjudication as to the sufficiency of the proof on which it issued. The law is chargeable with no such obliquity. (Barb. Crim. Treatise, 449, and the cases cited (note 2) ; 6 Barb., 253.) In the case last cited, the court decided that where a person prefers a criminal charge against another before a justice, and is a witness upon the trial, and employs counsel to conduct the case, yet he is not liable for the consequences of an erroneous conviction. The application of this principle will exonerate the defendant Fulton; for there is no evidence of any participation in the arrest of Comfort, except simply in preferring the complaint and stating the ground of his suspicion. That he subsequently acted as counsel in behalf of the People cannot vary the case, as he cannot be made guilty cib initio.
    
    II. Is the defendant Soules (the justice) liable? A justice of the peace is entitled to the same protection afforded to a judge of a court of record. (Horton a. Auchmoody, 7 Wend., 200.) The principle of judicial irresponsibility, so far as respects a civil remedy, is as old as the common law itself. It extends to all judges, and to all public officers in the exercise of a judicial power. Ho public officer is responsible in a civil suit for a judicial determination. (Beardsley, J., in Weaver a. Devendorf, 3 Den., 117, and the many cases there cited; 12 Barb., 511 ; 21 Wend., 552.) But it may be said that this principle is only applicable when the officer acts judicially and not ministerially. This is admitted. What is a ministerial act ? In ordinary cases it is the doing of an act which requires no exercise of judicial functions, e.g., the issuing of process. Consequently, if a justice should issue an execution in á case in which no judgment had been rendered, or on a judgment rendered by him in a case of which he had ho- jurisdiction, in regard to the subject-matter, lie could not shield himself from an action. But, in deciding whether an offence had been committed, and as to the grounds of suspicion stated to him, he acted judicially, and is protected. (5 Barb., 467.)
    III. A widely different rule prevails in civil and criminal cases as to the ¡Dowers of a magistrate on whom authority is conferred to do certain acts of a judicial nature. This distinction is all-important to the proper decision of this case. In civil cases the statute prescribes what is necessary to confer jurisdiction in a variety of cases; the rule being radically different in a criminal case. Thus, in the proceedings under the act for the support of the poor (2 Rev. Stat., 4 ed., 11, § 8), certain specific facts are to be proven before the warrant can be issued; and thereafter the Court of Sessions (§ 10) are to inquire into the facts and circumstances, &c. So under the act concerning bastards (Ib., 57, §§ 5, 6), the justice is “to make inquiry into the facts and circumstances of the case” before issuing process. And so in other cases. In these cases, respectively, the court or officer has no discretion in regard to the question; whether “facts and circumstances” shall be stated or no. The statute requires it. But the statute makes no such requirements in regard to criminal cases. There is much greater latitude given to the discretion of the magistrate to whom a complaint is preferred in cases of crime. There is an obvious reason for this. Offenders often are “ on the wing,” and, if arrested at all, must be arrested on, the strength of such proof as the complainant has at hand, and not. on the more conclusive proof he may furnish on the examination which is to follow the arrest; besides, the magistrate acts at his peril in neglecting or refusing to entertain a complaint. (Ib., 880, § 53.) Consequently, the statute does not require “ facts and circumstances” to be stated as in civil proceedings before referred to. The magistrate is to require proof that a “ criminal offence has been committed;” and if it shall appear to him that a criminal offence has been committed, he is to issue his warrant, (Ib., 889, § 2.) If, then, the justice, Soules, is to be made liable for a false imprisonment, it must be for the reason that he had not jurisdiction of the case presented .to him by the complaint of the defendant Fulton. Let us examine this question.
    IV. There was positive proof of a criminal offence having been committed, and it is all that is required by the' statute under which the proceedings were had, to give the justice jurisdiction of the case. The complaint further alleges that the person complaining has probable cause to suspect, and does suspect, that Andrew Comfort (the plaintiff) did feloniously steal, &c., said goods and chattels. The grounds of his suspicion are not set forth in the written complaint, nor is this required by the statute. He did, however, state, on his oath,"as the grounds of his suspicion, that he had been informed by his son, that he (the son) had s.een the said Comfort digging the potatoes, putting them in a bag, and carrying them away. That he had missed his potatoes. Here was proof. It was on information and belief only, but it was satisfactory to the mind of the magistrate (per Nelson, Ch. J., 17 Wend., 187) that a criminal offence had been committed, and that Comfort had. conimitted it, or that there were reasons for suspecting him. At any rate, he was charged upon oath “ with the offence,” in the language of section 1 of the act referred to; and this statute contemplates suspicion of guilt, as well as actual guilt, as a sufficient reason for issuing a warrant and having further examination. In the language of the Supreme Court, the complaint and oral examination of the defendant, on oath, gave the justice jurisdiction of the complaint, and authorized him, on deciding that a criminal offence had been committed, to issue his warrant. An error of judgment in making this decision did not invalidate the warrant. (Campbell a. Ewalt, 7 How. Pr., 399 ; Payne a. Barnes, 5 Barb., 465 ; Atchinson a. Spencer, 9 Wend., 62.) Nor is it'necessary to embody in the warrant all that is stated in the complaint. The substance of the complaint is all that is required. (9 Wend., 62.) The language of the statute is, “ the magistrate shall issue his warrant, reciting the accusation.” In the case in 5 Barb., 465, the court say that the'terms of the Revised Statutes are satisfied, in reference to the word “ accusation,” by saying that a criminal offence has been committed. It has been supposed that the case of Wilson a. Robinson (6 How. Pr., 110) holds a contrary doctrine, but this is a mistake. In that case no offence had been committed; nor did the complaint show the commission of a criminal offence.
    V. Too much strictness should not be required of the magistracy of the State, nine-tenths of whom are not familiar with the technicalities of the law. Forms are prescribed for their use by men of respectability in the legal profession; and in' the case before the court, these forms were adhered to strictly. (Barb. Crim. Treatise, 571, 574.) Even upon jurisdictional questions great indulgence is to be exercised towards officers and parties, as a matter of' public policy. Where a justice has jurisdiction of the subject-matter,—if the proof has a legal tendency to make out the case, “ although slight and inconclusive,” yet being required by law to determine on the weight of proof, —he acts judicially in the matter, and is protected. (18 N. Y., 356 ; 1 Kern., 341 ; 21 Wend., 554.) If it were necessary to refer to English law, it will be found to coincide fully with the positions heretofore taken in relation to the non-liability of the magistrate. (See 3 Dickinson’s Justice, ed. of 1822, 501 ; 5 Burns’ Justice, London ed. of 1836, 56 ; 2 Hale’s P. C., 80 ; 2 Hawkins, ch. 13, § 18 ; 1 Arch. Crim. Law, 7 ed., 122 ; 8 East, 113 ; Chitty’s Crim. Law, 12.) The opinions of courts and elementary writers are embodied in the language of Kent, Ch. J., in Yates a. Lansing (5 Johns., 282): “ Whenéver we subject the established courts of the land to the degradation of private prosecution, we subdue their independence and destroy their authority.”
    The judgment should therefore be reversed.
    
      Bush & Wells, for the respondent.
    —I. The arrest and imprisonment of the plaintiff was wholly unauthorized by law. 1. It may be stated as a general rule, that a magistrate cannot issue a criminal warrant for the arrest and imprisonment of a person, until it is proved to his satisfaction, by competent evidence, that there is probable cause to believe that the person complained of is guilty of the offence alleged against him. He must be satisfied by competent proof that there is some real grounds for a suspicion of the defendant’s guilt. (Barb. Criminal Law, 2 ed., 520-522.) To this extent the liberty of the citizen is secured, and the machinery of courts preserved from abuse by the fundamental law of the land. (Const. U. S., amendments, art. 4 ; Walker a. Cruikshank, 2 Hill, 296.) The statute in reference to the arrest of offenders (2 Rev. Stat., 4 ed., 889, §§ 2, 3), provides that when complaint shall be made to a magistrate, it shall be his duty to require an examination under oath, and that if it appear from such examination that an of-fence has been committed, he shall issue his warrant for the arrest of the person accused. ■ The word “ accused,” as used in this statute, has a fixed legal meaning, i. e., “ charged with a crime or misdemeanor. (1 Bouvier’s Law Dict., 52.) A legal charge or accusation cannot exist without some legal evidence to support it. It cannot be said that a person is legally accused or charged with a crime, until some legal evidence is brought against him. 2. In this case there was no evidence given before Esq. Soules of any fact or circumstance tending in the least to establish a probable cause to believe that the plaintiff was guilty, or that tended to accuse or charge the plaintiff with the crime alleged. Fulton stated the ground of his suspicion, which was, that his son Henry had informed him that he had seen the plaintiff in the potato field, digging potatoes, putting them in a bag, and carrying them away. This is clearly incompetent evidence to prove a fact in any case. And Fulton did not even swear that he believed it to be true. If Henry Fulton had went before Esq. Soules and made the same unsworn statement that he made to his father, no one would pretend that it amounted to any thing; much less would the unsworn statement made by Henry to his father, not in the presence of the justice, be sufficient. The justice had the power to issue a subpoena to compel the attendance of Henry Pulton to testify upon the examination, previous to issuing the-warrant. Such a power is incidental to the general duties of the office, and is also given by statute. (2 Rev. Stat., 4 ed., 901, § 40.) When certain facts must be proved to a court of special or limited jurisdiction, to authorize the issue of process, if there be a total defect of evidence to any essential fact, the process will be declared void, in whatever form the question may arise. (Miller a. Brinkerhoff, 4 Den., 118 ; approved by the Court of Appeals in Staples a. Fairchild, 3 Comst., 41.) This being the rule in regard to the seizure of property, a fortiori it applies when the liberty of the citizen is involved.
    II. The justice not having jurisdiction or authority to issue the warrant, was personally liable as a trespasser. (Adkins a. Brewer, 3 Cow., 206 ; Butler a. Potter, 17 Johns., 145 ; Bigelow a. Stearns, 19 Ib., 39 ; 14 Ib., 246 ; Powers a. People, 4 Ib., 292 ; People a. Koeber, 7 Hill, 39 ; People a. Young, Ib., 44 ; Curry a. Pringle, 11 Johns., 444.)
    III. The complainant ordered, instituted, and conducted the proceedings to the close, notwithstanding the defendant did, in his presence, demand that he should be released from arrest. And the evidence tends strongly to show that the complainant was actuated- by malicious motives. He is therefore liable as a trespasser equally with the justice. (Curry a. Pringle, 11 Johns., 444 ; Griswold a. Sedgwick, 6 Cow., 456.) The case of Peckham a. Tomlinson, cited by appellants, is not in point, as will be seen. In that case the original process was in every respect, valid, and there was no question raised as to the jurisdiction of the court to try the case. (6 Barb., 253.) It follows, from the foregoing observations, that the judge’s charge to the jury was correct. There was no conflict of evidence in the case.
   By the Court.— Gould, J.

—There are two palpable defects in the original proceedings before the justice of the peace (Soules, the defendant), either one of which renders his whole proceedings, in issuing the warrant, so absolutely without jurisdiction and void, that both defendants must be liable in this action. ■

1. Taking the affidavit of Fulton, as coupled with his oral examination, and the complaint really made before Soules amounts to this: That Comfort had, in one continued act, dug and carried away Fulton’s potatoes, of some indefinite value, guessed at $3. Such an act, at common law, is no criminal offence; severing and taking away a growing crop (by one act) is but a trespass. By our statutes (see and compare 3 Rev. Stat., 5 ed., 959, § 70 ; 971, § 1 ; and 973, § 15, div. 4), such an act, if the property so severed and taken was of more than $25 value, would be grand larceny; but if the property were of the value of $25, or less, the act is no criminal offence, unless charged to have been done maliciously; and if so charged, it. is a misdemeanor, as a malicious trespass,” but it is not stealing. In the papers before us, the charge is of stealing potatoes of the value of $3; and the warrant is for stealing,—an offence which Fulton’s oral examination actually and completely disproved.

2. The oral testimony, taken by the'justice, shows that Fulton, personally, knew nothing on the subject of the charge; and further, that his son, competent, accessible, and the only witness who could sustain the charge, did personally know all the facts, whatever they were. And while it is barely possible that so meagre a complaint as the written one in this case might sustain a warrant, if it were all the proof that could be produced before the justice, until an arrest should enable the complainant to enforce the attendance of witnesses ; still, a case where the justice had before him so little, with certain information that full knowledge was within his reach, is not one to be favored by any court which regards exemption from groundless arrest as one of the rights of the citizen.

As to the liability of both defendants : there can be no doubt of that of the justice; and the complainant was too conspicuous an actor in the whole proceeding, to be sheltered behind the legal cover of the warrant. Indeed, the jury might fairly infer, from the evidence, that the complainant’s motives in asking for the warrant were malicious; and that the justice understood the position of both parties, and was willing to gratify the complainant, both believing that they were under the cover of the law. Both should be held responsible .for- an arrest -so' utterly without legal justification. ,

The charge of the judge at the circuit was in precise accordance with the views expressed above, and was not erroneous. The judgment must be affirmed (and order refusing- new trial also,—Query ? as that is not appealed from).

Peckham, J.—The Constitution of the United States provides that “.no -warrant -shall issue but -upon probable cause, supported by oath or affirmation, and-particularly describing the place.to be searched, and the .persons or things to be seized.” (Art. 4.) I do not know why this is not the law of the land in State as .well as in United States tribunals. It is in terms reenacted-in our bill of rights. (1 Rev. Stat., 93.)

In this case, information from his son by complainant is no proof whatever. It cannot be by possibility “ probable cause supported by oath.’! It- is.no “ oath or affirmation,” within, the meaning of the law. Had any fact been stated, so as to enable the magistrate to exercise his judgment .as to the probable cause, he could not be made liable for an error in its exercise. Here was nothing more (nor so much in fact), than if the son had come into .court and stated, without oath, that he saw this plaintiff commit-the offence. That would not be claimed to be sufficient.

Hogeboom, J., concurred. 
      
       Present, Gould, Hogeboom, and Peckham, JJ.
     