9 Gray 283, 75 Mass. 283

October, 1857

The requirement of the Rev. Sts. c. 135, § 2, that a warrant issued for the arrest of an accused person shall recite the substance of the accusation, is complied with by making the warrant on the same paper with the complaint, and definitely referring to it.

It seems, that an objection to the form of a warrant issued upon a complaint before a justice of the peace, though taken before the justice, is waived by not renewing it at the first opportunity in the court of common pleas on appeal.

TWO COMPLAINTS made, one by Peter C. Thayer, the other by John T. Carter, to a justice of the peace in Taunton, for single sales of intoxicating liquor in violation of St. 1855, c. 215, § 15. In each case the warrant upon which the defendant was arrested was upon the same paper with the original complaint.

In Dean's case, immediately following the complaint, the words of the warrant were as follows: "Bristol, ss. To the sheriff of said county, or his deputy, or to either of the constables of the town of Taunton in said county, greeting: Whereas the above complaint has this day been made on oath to the subscriber, a justice of the peace within and for said county, by the above named Thayer against the above named Dean, for the offence described in the annexed complaint." Then followed the order to apprehend the defendant and bring him before the justice, and to summon as a witness the person to whom liquor was alleged to have been sold.

Dean, before pleading to the complaint, moved that the complaint and warrant be quashed, and further proceedings be stayed, "because said warrant does not recite the substance of the accusation against the defendant, as is required by statute." The justice overruled the motion, and the defendant, being convicted, appealed to the court of common pleas, and, being again found guilty there, moved in arrest of judgment for the same reason. The court of common pleas overruled the motion, and the defendant appealed to this court.

In Hoye's case, the complaint and warrant were precisely like

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those against Dean, except in substituting, for the corresponding words in that warrant, the following words: "by the aboved named Carter against the aboved named Hoye." Hoye, before pleading to the complaint, moved to be discharged, because the warrant was insufficient, and this motion being overruled, and himself convicted, appealed to the court of common pleas, and there renewed his motion, and excepted to the decision of that court overruling it.

B. Sanford, for Dean. The Rev. Sts. c. 135, § 2, provide for a warrant separate and distinct from the complaint, and require it to recite "the substance of the accusation." And so is the form in D. Davis's Justice, 39, 202. This case is distinguishable from previous cases. The warrant held sufficient by a reference to the complaint, in Commonwealth v. Dana, 2 Met. 329 , was a search warrant, issued under Rev. Sts. c. 142, § 3, which require only that the place and the articles to be seized "shall be designated and described in the warrant." Donahoe v. Shed, 8 Met. 326 , was an action against the officer who served the warrant; and a process may well be sufficient to protect an officer acting under it, and yet insufficient to support an action or prosecution. Brigham v. Este, 2 Pick. 420 . The failure of the warrant to conform with the requirements of the statute, having been seasonably objected to, was a fatal defect. Commonwealth v. Henry, 7 Cush. 512 .

C. I. Reed, for Hoye.

J. H. Clifford, (Attorney General,) for the Commonwealth.

SHAW, C. J. The statute requires that the warrant shall recite the substance of the accusation. Rev. Sts. c. 135, § 2. Although this, upon a strict and literal construction, would require the insertion of the substance of the complaint in the body of the warrant, still it is a rule, almost if not quite universal, that where a paper is annexed, and definitely referred to, it is to be treated as recited in and a part of the process or instrument in which it is recited. Each of these warrants definitely refers to the complaint on the same paper, by the words, "the above complaint," "the offence described in the annexed complaint," and also mentions the names of the complainant and defendant.

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The words "aboved named" in the warrant against Hoye - obviously mistakes of the pen or of the printer - may be rejected as merely senseless, and still leave enough to make a definite reference to the complaint.

If it were otherwise, the defect would be a mere informality or irregularity, an omission of a recital required for the defendant's benefit, and which was waived by a failure to take advantage of it at the earliest opportunity. The motion having been overruled in each case by the justice before whom the complaint was made, and the defendant thus obliged to proceed to trial, his pleading to the complaint there would not be a waiver of the objection. But he was bound to renew it before pleading in the court of common pleas. The objection is not therefore now open to the defendant in the first case. But we do not put it upon this ground; inasmuch as the answer already made is sufficient to dispose of both cases.

Exceptions overruled