8 Cush. 210, 62 Mass. 210

October, 1851

The contents of a complaint and warrant in a criminal case, lost after being returned into court, may be proved by secondary evidence.

Witnesses, to prove the contents of a lost instrument, may state the substance thereof, without giving the exact words.

The acts of an officer, in executing and returning a warrant in a criminal case, do not become illegal, by a failure to proceed with the warrant after its return.

The act of 1848, c. 331, § 4, vesting exclusive jurisdiction of the crimes and offences committed within the district of Lowell in the police court in Lowell, does not take away the power of justices of the peace to issue warrants for such crimes and offences, returnable before the police court.

THESE were indictments against the defendant; the first, for an assault upon William H. Clemence, a constable of Lowell, for the purpose of hindering and opposing him, in the discharge of his duty in the service of a warrant against one Francis Roark, other than the defendant; and the second, for an assault for the same purpose on one Crowell, the assistant of Clemence, in the service of the warrant. Both assaults, if any, were committed at the same time, and the indictments were tried together.

At the trial in the court of common pleas before Wells, C. J., the warrant was not produced; and the district attorney, for the purpose of proving its loss, called one Caverly, a justice of the peace residing in Lowell, who testified, that sometime in July previous, he received, at Lowell, a complaint made by one Crowell, for an assault upon him by one Francis Roark, within the city of Lowell; and that he issued a warrant thereon, and delivered it to Crowell. Crowell testified,

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that he gave the warrant to Clemence, who testified, that he arrested Roark and brought him before the justice of the police court of Lowell, and returned the warrant to the office of the court, and that nothing further was done with Roark upon the complaint and warrant; that the defendant did not plead thereto and was not discharged therefrom; that no notice was taken of the warrant; and that a new complaint was made by the city marshal of Lowell, against Roark, upon which Clemence arrested and returned him before the police court of Lowell, taking no notice of the former warrant.

Nathan Crosby, Esq., the standing justice of the police court, was called as a witness, and testified, that he remembered no such warrant; that it was not unusual, when a person was brought before him on a complaint received and warrant issued by a justice of the peace, where such process was considered to be defective or unsuitable, to make out a new complaint and warrant, upon which the accused was arrested and tried; in which case, it was his custom to put the first complaint and warrant on file, without any further action upon it, with the new one issued; that he presumed he had done so in this case; but he had searched diligently and could not find any such warrant, and had no record thereof whatever.

The district attorney then offered parol testimony of the contents of the first complaint and warrant, to which the defendant objected; but the judge overruled the objection and admitted the evidence. The district attorney then called the said Caverly, to prove the contents of the warrant. The defendant objected to any such evidence, unless the witness could swear to the contents of the complaint and warrant, word for word; but the judge overruled the objections, and allowed the attorney to prove that there was a precept substantially complying with all the requisites necessary to constitute a warrant.

The defendant further requested the judge to rule, that if Clemence did not continue his custody of the said Francis Roark, other than the defendant, in virtue of the warrant upon which he first arrested him, but abandoned that warrant, and arrested and held him under a new warrant for the same

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offence, he thereby became a trespasser ab initio, so far as the defendant was concerned; and that the defendant could not be convicted upon the indictment, for obstructing an officer in the discharge of his duty in the service of the precept thus afterwards abandoned. The judge refused so to instruct the jury, but did instruct them, that the acts of the officer, under the warrant, before it was so abandoned, were justified by the warrant; and that an interference and opposition to the service of the same before it was so abandoned would support this indictment.

The evidence tended to prove, that the complaint and warrant were in the usual form, and were received and issued by said Caverly and made returnable before the police court in Lowell. The defendant requested the judge to rule, that it appearing that the complaint was received and the warrant issued by a justice of the peace, at Lowell, for an offence committed within the city of Lowell, the warrant was illegal and void, because the police court of Lowell had exclusive jurisdiction of such offences; and that all complaints, for offences committed within the city of Lowell, must be received by some justice of that court, and all warrants upon such complaints and for such offences must be issued by them. The judge declined so to instruct the jury.

The defendant, being convicted, alleged exceptions to the foregoing rulings and instructions.

B. Dean, Jr., for the defendant.

Clifford, (attorney general,) for the commonwealth.

BIGELOW, J. No part of the law of evidence is more clearly settled, than the rule that the contents of lost records may be proved by parol. In this respect, they stand on the same footing with all other documents, and may be proved by secondary evidence. 1 Greenl. Ev. § 509; Roscoe Crim. Ev. 11, 12; Sayles v. Briggs, 4 Met. 421 . The argument, that the admission of parol evidence for such a purpose would often be attended with dangerous consequences, especially in a case like the present, where the change of a word might affect the validity of a warrant, is an objection which might well be urged to its weight, but cannot be considered in judging of

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its competency. In the present case, the proof of the loss of the warrant was full and satisfactory, and the secondary evidence was rightly admitted.

Nor was it necessary that the witnesses to the contents of the warrant should testify to them verbatim. The rule requiring proof of the exact words sworn to by a deceased witness at a former trial stands upon its own peculiar reasons, and is not at all applicable to this case, which comes within the familiar principles regulating the admission of secondary evidence.

The next exception is founded on the objection, that the first warrant having been abandoned and a new one issued on which the party was arrested, the first warrant was thereby rendered invalid; so that the officer in making the first arrest became a trespasser ab initio, and therefore the defendant in this case was not liable for hindering him in the discharge of his duty. But this objection proceeds on an entire misapprehension. An officer does not become a trespasser ab initio unless he fails to perform some part of his duty. In this case, there was no such failure on the part of the officer in regard to the first warrant. He duly served the process, carried the party before the magistrate and made return of his warrant. Here his duty ceased. He had obeyed his precept by duly serving and returning it, and this was all he could by law do. If, after the return of the warrant by the officer to the police court, the prisoner was discharged from custody on it and a new warrant issued, that was the act of others for which the officer was not responsible. The case of Tubbs v. Tukey, 3 Cush. 438 , cited by the defendant's counsel, bears no resemblance to the case at bar. There the officer was held a trespasser ab initio because he did not serve and return his warrant according to its precept, which was done by the officer in this case. The exception on this point, therefore, cannot be sustained.

The remaining exception raises a more important question. The warrant, on which the arrest was made, was issued by a justice of the peace for the county, and made returnable before the police court of Lowell. It is contended that the magistrate

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had no power, under the statutes relating to this subject, to issue the warrant. This depends on the construction to be given to the St. of 1848, c. 331, § 4, by which “exclusive jurisdiction of the crimes and offences committed within the district of Lowell, shall be vested in said police court, to be exercised according to the laws of the commonwealth.” If this section of the statute stood alone, we should be inclined to the opinion that the position taken by the defendant was correct. But in order to give it a proper construction, it is necessary to take into consideration the previous statutes on the same subject. By the St. of 1833, c. 64, § 2, establishing the police court in Lowell, it was provided that all warrants issued by any justice within that town should be made returnable and be returned before said court. A similar provision was embodied in Rev. Sts. c. 87, § 33, and made applicable to the several police courts then established in different parts of the commonwealth out of the limits of the county of Suffolk; and in the same chapter, § 5, a like provision was made applicable to the police court in the city of Boston. So the law stood, when the act of 1848, c. 331, relating only to the police court in Lowell, was passed. But in the mean time the case of Commonwealth v. Pindar, 11 Met. 539 , was decided, in which it was held that the police court of Lowell had no exclusive jurisdiction to hear and try complaints for offences committed within that city, but only a jurisdiction concurrent with that of any justices of the peace within the county of Middlesex, residing out of the city of Lowell. From this view of the statutes, taken in connection with the decision in Pindar's case, we are led to believe that the single purpose of § 4 of St. 1848, c. 331, was to change the law as settled by this case, and to take away the power of justices of the peace for the county, residing out of the city of Lowell, to hear and try offences committed within the city; but that it was not intended by this section to affect or abridge the power of magistrates in issuing warrants as provided by previous statutes. The policy of the legislature in all these acts, seems to have been to give to magistrates the power to issue warrants returnable before police courts in all cases, even in those which they

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had no power to hear and try. This was done for public convenience and to secure the speedy arrest of offenders. The construction of the St. of 1848, c. 331, § 4, contended for by the defendant, would contravene this policy, and place the police court of Lowell on a different footing in this respect from all other courts of a similar character in the commonwealth. While, on the other hand, if it be held applicable only to the power to hear and try complaints, and not to receiving them and issuing warrants, the statute would have full effect, without breaking in upon a system, which would otherwise be uniform.

Besides; the mere power to receive complaints and issue warrants, without any right or authority to hear or try the parties, cannot be considered an exercise of jurisdiction on the part of a magistrate. It partakes more of a ministerial than of a judicial character. It is laid down in 2 Hawk. c. 13, § 20, that where a warrant is issued for the arrest of one guilty of an offence, not cognizable by the justice who issues it, the justice may be considered as acting ministerially. See also Pearce v. Atwood, 13 Mass. 324 , 342. In this view, it is clear that the St. of 1848, c. 331, § 4, conferring exclusive jurisdiction on the police court of Lowell, does not annul the power of justices to issue warrants returnable before the police court, as provided by former statutes; because, not being an exercise of jurisdiction, it does not come within the terms of the statute. The warrant in this case, therefore, was rightly issued.

Exceptions overruled.