West v. Cabell/Opinion of the Court
This was an action upon a marshal's bond, in the usua form, the condition of which was that the marshal, by himself and his deputies, should faithfully perform all the duties of his office, and upon which any person injured by a breach of the condition might maintain an action. Rev. St. §§ 783, 784; Lammon v. Feusier, 111 U.S. 17, 4 Sup. Ct. 286. The breach relied on by Vandy M. West, the plaintiff in this case, was his arrest, against his protest, by a deputy of the marshal, under a warrant issued by a commissioner, commanding the arrest of James West, and not otherwise designating or describing the person to be arrested, upon a complaint of the deputy marshal charging James West with the murder of John Cameron. The defense was that the arrest of the plaintiff under that warrant was lawful. At the trial it appeared that the plaintiff had never been known or called by the name of James West, or by any other name than his own; notwithstanding which, the court, against the objections and exceptions of the plaintiff, admitted oral testimony of the commissioner and of the deputy marshal that the warrant was issued and intended for the arrest of the plaintiff, and instructed the jury that, if they believed that the plaintiff was the man for whose arrest the commissioner issued the warrant, the defendants were not liable for damages on account of the mere fact of arrest.

By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him. If it does not, the officer making the arrest is liable to an action for false imprisonment; and if, in attempting to make the arrest, the officer is killed, this is only manslaughter in the person whose liberty is invaded. 1 Hale, P. C. 577, 580; 2 Hale, P. C. 112, 114; Fost. Crown Law, 312; 1 East, P. C. 310; 1 Chit. Cr. Law, 39, 40; Huckle v. Money, 2 Wils. 205; Money v. Leach, 3 Burrows, 1742, 1766, 1767, 1 W. Bl. 555, 561, 562; Rex v. Hood, 1 Moody, Crown Cas. 281; Hoye v. Bush, 1 Man. & G. 775, 2 Scott, N. R. 86. Likewise, a warrant of arrest in a civil action, which does not name or describe the person to be arrested, is no justification of the officer. Cole v. Hindson, 6 Term R. 234; Shadgett v. Clipson, 8 East, 328; Finch v. Cocken, 2 Comp. M. & R. 196, 1 Gale, 130, and 3 Dowl. 678; Kelly v. Lawrence, 3 Hurl. & C. 1.

The principle of the common law, by which warrants of arrest. in cases criminal or civil, must specifically name or describe the person to be arrested, has been affirmed in the American constitutions; and by the great weight of authority in this country, a warrant that does not do so will not justify the officer in making the arrest. Com. v. Crotty, 10 Allen, 403; Griswold v. Sedgwick, 6 Cow. 456, 1 Wend. 126; Mead v. Haws, 7 Cow. 332; Holley v. Mix, 3 Wend. 350, 354; Scott v. Ely, 4 Wend. 555; Gurnsey v. Lovell, 9 Wend. 319; Melvin v. Fisher, 8 N. H. 407; Clark v. Bragdon, 37 N. H. 562, 565; Johnston v. Riley, 13 Ga. 97, 137; Scheer v. Keown, 29 Wis. 586; Rafferty v. People, 69 Ill. 111.

In Com. v. Crotty, for instance, in which Morris Crotty and others were indicted and convicted for a riot in resisting the arrest of Crotty upon a warrant commanding the arrest of 'John Doe or Richard Roe, whose other or true name is to your complainant unknown,' the conviction was set aside by the supreme judicial court of Massachusetts, upon the grounds that the warrant was insufficient, illegal and void, because it did not contain Crotty's name, nor any description or designation by which he could be known and identified as the person against whom it was issued, and was, in effect, a general warrant, upon which any other person might as well have been arrested, as being included in the description; and that: 'The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant, and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer. An officer who acts under a void precept, and a person doing the same act who is not an officer, stand on the same footing; and any third person may lawfully interfere to prevent an arrest under a void warrant, doing no more than is necessary for that purpose.' 10 Allen, 404, 405.

The fourth article of amendment of the constitution of the United States declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants 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.'

The provision of section 1014 of the Revised Statutes, which authorizes an offender against the laws of the United States to be arrested and imprisoned or bailed by a judge of the United States or a commissioner of the circuit court in any state where the offender may be found, 'and agreeably to the usual mode of process against offenders in such state,' is necessarily subordinate to the declaration of the constitution that all warrants must particularly describe the person to be seized.

The laws of the state of Texas in this regard are in conformity with this article of the constitution of the United States. By the constitution of Texas (article 1, § 9), 'no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.' And by the statutes of the state the warrant, as well as the complaint, 'must specify the name of the person whose arrest is ordered, if it be known; if not known, then some reasonably definite description must be given of him;' and 'the officer or person executing a warrant of arrest shall take the person whom he is directed to arrest forthwith before the magistrate.' Cr. Code Tex. arts. 233, 236, 247; Alford v. State, 8 Tex. App. 545, 562; Hays v. Creary, 60 Tex. 445; Formwalt v. Hylton, 66 Tex. 288, 1 S. W. 376.

The only cases cited by the defendants in error which have any tendency to support the rulings at the trial were in Delaware, in which the chief justice dissented, and in Iowa and Arizona, whose statutes provided that 'the warrant must specify the name of the defendant, and, if it be unknown to the magistrate, may designate him by any name;' and in none of those cases was any notice taken of opposing precedents or constitutional injunction. Bailey v. Wiggins, 5 Har. (Dal.) 462; Allen v. Leonard, 28 Iowa, 529; Code Iowa 1860, § 4535; Williams v. Tidball (Ariz.) 8 Pac. 351; Comp. Laws Ariz. 1877, c. 11, § 89.

In the case at bar, the effect of the rulings and instructions of the court was to give the jury to understand that the private intention of the magistrate was a sufficient substitute for the constitutional requirement of a particular description in the warrant. For this reason,

The judgment is reversed, and the case remanded, with directions to set aside the verdict, and to order a new trial. 

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