Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-01-20
HEARSAY EVIDENCE
Decided Yesterday by Judge HOrrigan
10 be No Ground for the Issuance
Of Warrant.
In the Test Case the Judge DisalIOws
All the Fees Claimed by the
Magistrate.

/ urner and squire tlulgley to Judge horrl'
gan. involving all important matter con-
corning the bringing of suits before magis-
trates, has been decided by the judge in
favor of the attorney-general. The following
are Judge Horrigan's reasons therefor:
state Of Tennessee a.. Daniel Good-Motion to dis,
allow fee. oi magistrates upon n warrant issued
for public oiiense
This is motion made by the attorney
general 10 disallOw the fees provided for by
law for the issuance OF warrant for pub
tic ofense, and all other proceedings under
said warrant upon the alleged ground that
the magistrate wrongfully and improvidently
granted the warrant.
THE STATEMENT OF FACTS
agreed to by the respective parties to this
motion shows that the compl4 nant, upon
whose testimony alone the said warrant was
obtained, knew nothing to whether or not
the offense charged IN the warrant had been
committed; nor did he know any fact to show
! that there was reasonable ground to believe
| that the party named in the warrant was
guilty of public ofense except az he had
been informed by another person. In a word,
the magistrate acted alone upon
HEARsAY TESTIMONY
to establish the fact that public offense had
been committed, and also to identify the
offender. 1t is too plain to admit of argu-
ment that the testimony received would be
held incompetent in the trial of a civil or
criminal case. Then the question follows,
are the rules of evidence to be disregarded
in hearing evidence upon an application for
a warrant for the arrest of a party accused
of crime? The safeguards which the law for
wise purposes throws around the humblest
citizen in this State TO protect him in the en-
joyment of his liberty, is
CONCLUSIVE ANSWER IN THE NEGATIVE.
We think Mr.. Chitty, in his work on crimi-
81 la lars tho folIaruino rttlo To
guide magistrate in granting a warrant for
the arrest OF a person accused Of crime: "A |
magistrate ought, unless he commits upon |
view of the ofiense, TO examine upon oath |
the party requiring the warrant, as we'll to |
ascertain that felony or other crime has
been committed, as also to prove the cause |
and probability OF suspectiDg the party |
against whom the warrant is prayed. And
it is the duty OF the magistrate well to
CONSIDER ALL THE CIRCUMSTANCES
sworn 10, and not to grant any warrant |
groundlessly or maliciously, without such
probable cause as might induce discreet
and impartial man to suspect the party to be
guilty And if the magistrate should grant
this warrant without an oath of circum-
stances affording a reasonable suspicion of
guilt, and the party prove to be innocent,
the magistrate will be liable to an action of
trespass at the suit OF the individual ag
Sf1eVeu. OuIIt- VI. l., o..
THE RULE OF LAW.
Mr.. Barbour, in his work on criminal law,
states the rule as follows: at is hardly
to observe that the magistrate, in
this preliminary stage of the proceedings,
should ssdulousIy endeavor TO inform him.
self of the true nature of the case. Ii he
en- tertains suspicious of the integrity of the
persons sworn, his diligence should be pro-
increased. Instances will arise
where the application for criminal process is
made from motives of reprehensible charac-
er; in order, perhaps, TO crafty reveDgeful
ceilings, or to procure the conviction of some
person Of an infamous crime who is likely to
Je a witness against the complainant and
hus to disqualify him from giving testi-
nony. The examination in these and kim
lred cases should be of the most searching :
character, lest the public be subjected to the
expense of groundless prosecution, and the
process of the law prostituted to the purposes
f fraud and oppression" Sections 5000, !
021 and 5022 of the code of this State do not I
hapge the common law rule, but are declar-
tory thereof.
THE MAGISTRATES COURSE DEFINED. ..
Can it be said that there is probable cause
o issue a warrant upon the oath of a person
rho can only state that he heard that pub
ic offense had been committed, and that a
ertain person was guilty thereof? There
an De no uOuDI unOer the Oh law nereln
ited that ii is the duty of the magistrate to
ither refuse to issue a warrant or to delay
he issuance until by process the magistrate :
nay bring before him all persons who may
e able to give competent evidence to
Ihether or not public otfense has been :
and if the offense is shown, then t.
evidence should be heard to iden- J
fly the offender.
THE RULE ILLUSTRATED. =
This case will serve to illustrate the wis v
ON of the rule here cited from the common q
NV. A states to B, as claimed by B, that c a
ad committed an assault and battery upon Il
is person. applies for warrant for the il
rrest of G and obtains it upon his hearsay Il
formation. When the accused was brought o
efore the magistrate for examination on n
lid charge, A was examined as a witness II
nd swore that the offense had not been COM n
lifted, and further denied having ever n
ated anything to B to authorize or justify Il
i'm in stating that such offense had been t.
,mmitted, or TO apply for warrant for the a
rest of the accused or any other person. Il
THE OPINION OF THE COURT. u
1t is the opinion of the Court hat the V
arrant in this case was groundleesly and =
nprovidently granted, and therefore all of g
lie fees claimed by the magistrate will DO
sallowed. Judgment will be entered in ac- :, =
,rdance with the rule here announced in y
ia and all other eases within the rulp