#### Jones and Others v. The Commonwealth.*

December, 1842.

Assault and Imprisonment†—Under Color oí Warrant. —Case of an information against a justice of the peace, an informer, and a constable, for assaulting and imprisoning a party, under colour of a warrant of arrest for perjury, issued against him by the justice on the oath of the informer, and executed by the constable; wherein it was held by the general court, upon the evidence, that the information was not sustained as to the justice, but that the informer and constable were properly convicted and fined.

On the 15th of April of 1840, the circuit superior court of Scott county ordered that Samuel E. Jones, Philip *Counts and Archibald Forgay be summoned to appear before the court on the first day of the next term, to shew cause why an information should not be filed against them for assaulting and arresting William Sons on the 9th day of April 1840, and imprisoning him from that day until the 14th of the same month. The summons was ordered on the motion of the attorney for the commonwealth, “and for reasons appearing to the court upon the trial of the writ of habeas corpus, returned to this court on yesterday, in favour of William Sons against Samuel E. Jones, a constable of this county.”

The summons having been issued and duly served upon the defendants, and they not appearing, an, information was ordered by the court, and accordingly filed, charging that the said defendants, on the 9th of April 1840, at the county of Scott, “did make a violent assault upon William Sons, and did then and there arrest the body of the said William Sons, and .then and there imprison him the said Sons from the said 9th day of April until the 14th day of the same month.” A trial being had upon the plea of not guilty put in by the defendants, the jury returned a verdict finding all of them guilty, and assessing upon Jones and Eorgay a fine of 16 dollars 66 cents each, and upon Counts a fine of 20 dollars. Whereupon the defendants severally moved the court to set aside the verdict and to grant them a new trial, upon the ground that the verdict was not supported by the evidence; which motion the court overruled, and proceeded to enter judgment against the defendants, for the fines severally assessed as aforesaid, and the costs of the prosecution. To the opinion of the court overruling their motion for a new trial, the defendants filed a bill of exceptions; from which it appeared that the proof before the jury was as follows.

I. The attorney for the commonwealth gave in evidence the record of the proceedings had upon the writ of habeas corpus before mentioned; which were the following:—*The writ being awarded and duly served upon Jones, he made return thereto, that he arrested Sons on the 9th of April 1840, and had since detained' him in custody, pursuant to a warrant against the said Sons for the crime of perjury, issued by Archibald Eorgay a justice of the peace for Scott county, and directed to him the said Jones as constable of the said county; which warrant he annexed to his return, as a part thereof. Whereupon, it appearing to the court that the said warrant had been illegally issued, and that Sons was illegally detained in custody thereon, it was ordered that he be discharged out of the custody of Jones, and that the said Jones pay the costs in that behalf expended.

II. The warrant of arrest aforesaid was given in evidence by the attorney for the commonwealth. It was in the following terms:

“Scott county, to wit: To Samuel E. Jones const. Whereas Philip Counts has this day given information upon oath to me Archibald Eorgay, a justice of the peace for the county aforesaid, that on the 8th day of February last past, in the county aforesaid, a certain William Sons, of said county, willingly and maliciously and corruptly did swear a false oath against him the said Counts; these are therefore, in the name of the commonwealth, to require you to apprehend the said Sons, and to bring him before me or some other justice of the peace of the county aforesaid, to answer the premises, and further to be dealt with according to law. Given under my *451hand this 7th day of April 1840.” (Signed) “A. Forgay.”

III. The said William Sons, being introduced as a witness for the commonwealth, proved the following facts.

The defendant Jones, who is a constable for Scott county, arrested the witness on the 9th of April 1840, by virtue of the warrant aforesaid, and held him in ^custody until the 14th of the same month, when he was discharged on a writ of habeas corpus by the order of this court. While the witness was in the custody of Jones, he was taken by said Jones to the house of Philip Counts another of the defendants, where he remained one night; after which he was taken by Jones, accompanied by Counts, before Jonathan Hale a justice of the peace for Scott county, for the purpose of qualifying, and he was there urged by Counts to qualify, to a paper or instrument of writing which Counts had prepared, in relation to a note or due bill on which he (Sons) had been warranted by Counts. The warrant had been returned for trial before the defendant Forgay, and the note or due bill on which it was founded was for 75 cents. On the trial of the warrant, Sons was sworn to testify about the matter, and did testify that he had given to Counts no note or due bill for 75 cents, but had given him one for 50 cents, and that the note had been altered from 50 to 75 cents. Witness was told by Counts, that if he would swear to the truth of the paper to which he wished him to qualify before justice Hale, he should be set at liberty. This paper was to contradict the oath which witness had taken on the trial of the warrant aforesaid. This the witness refused to do; and thereupon he was taken before the defendant Forgay, for examination or trial, as he was told; but he objected to said For-gay’s having anything more to do with his case, and accordingly Forgay did not take it up. From Forgay’s, witness was taken back to the house of defendant Counts, where he remained all night; and on monday the 13th of the month, he was brought by Jones and some other persons to the courthouse, where the circuit superior court for the county was in session, and there he remained until the next day, when he was discharged from custody. When the witness was first arrested, he requested Jones to summon several witnesses for him, which was done. Whilst he was *in custod3', he was not tied, or in any manner harshly treated, except that on monday evening, while he was in custody at the courthouse, he started home without the consent of Jones, and was overtaken by Jones, who jerked him a little, and brought him back. Jones and Counts were brothers in law. Forgay lived about 8 miles from Counts, about 5 from justice Hale, and about 4 from justice Robert Spur. This witness (who is quite a youth, and very ignorant) further proved that although Jones and Counts had him in custody from the 9th to the 14th of April, inclusive, and took him before two justices of the peace, 3ret they never explained to him what they were going to do with him, only that the3r were going to try him for perjury, and never required from him security for his appearance before any court competent to indict him for perjury, which security, if they had required, it, he would have been able to give; nor did they take him before any justice except the said Forgay, for the trial of the warrant on which he was apprehended.

IV. Jonathan Hale, another witness for the commonwealth, proved, that at the time mentioned b3’ the witness Sons, he the said Sons was brought before this witness by the defendant Jones, in company with the defendant Counts, and Jones and Counts endeavoured to induce Sons to make oath before this witness to the truth of the paper or instrument of which Sons speaks in his testimony, and promised to release him on his doing so: but this he refused to do. That Sons, in presence of this witness, requested Jones to summon, as a witness for him, a person who lived about 6 miles distant: but that neither Jones nor Counts proposed to this witness to act in the case in which Sons was arrested.

V. Robert Spur, another witness, proved, that he saw Sons in the custody of Jones on two court days of the term held at Scott courthouse, (as mentioned by Jones in his testimony) and that Sons and his friends frequently x'complained to the witness that Jones and Counts would not bring him to trial. This witness further proved that Counts frequently took his cases before the defendant Forgay for trial.

VI. Jesse Roberts, another witness, proved, that he also saw Sons in the custody of Jones at Scott courthouse on monday and tuesday, and that he saw no effort made by the constable to have his case disposed of. That it was common for Counts to bring his cases before Forgay for adjudication ; and that in a case in which Counts had warranted the witness before Forgay, Forgay had taken some strange, and, as the witness thought, illegal proceedings.

And the foregoing were all the facts proved in the cause.

On the petition of Jones, Counts and Forgay, the general court awarded a writ of error to the judgment of the circuit court.

John W. C. Watson for the, plaintiffs in error: the attorney general for the commonwealth.

*

For monographic note on False Imprisonment, see end oí case. ,

†

See monographic *note*on “Assault and Battery” appended to Roadcap v. Sipe, 6 Gratt. 213.

The judgment of the general court was as follows:

> “It seems to a majority of the court here, that the judgment of the circuit superior court is erroneous as to the plaintiff in error Archibald Forgay, but that there is no error therein as to the plaintiffs in error Samuel E. Jones and Philip Counts: Therefore it is considered that the said judgment, as to the said Archibald Forgay, *452be reversed and annulled; that the verdict, as to him, be set aside; and that the cause, as to him, be remanded to the said circuit superior court, for a new trial to be had therein upon the information according to law: and it is further considered that as to the said Samuel E. Jones and Philip Counts, the said judgment be affirmed, and that the commonwealth recover against them her costs about her defence in this court expended.”