#### STATE v. EDWARD BRYSON.

Magistrate's Warrant, sufficiency and amendment of.

The affidavit of a complainant in a criminal action before a magistrate, does not constitute an essential part of the warrant issued thereon, but if the warrant charges a criminal offence, it will be sustained. Suggestion of the court upon the power of amendment of such warrant.

(Welch v. Scott, 5 Red., 72, cited and approved.)

CRIMINAL Agtion tried on appeal at November Term, 1880, of New Hanover Criminal Court, before Meares, J.

This prosecution commenced in the court of a justice of the peace, where the defendant was tried for a misdemeanor in violating the second section of chapter 219 of the laws of 1879, which section is as follows: “Any person or persons who shall secrete or harbor any such seaman who has deserted from any domestic or foreign vessel in the localities above named knowing that such seaman or seamen have deserted,” &c. When the case was called for trial in the criminal court, it was discovered that both the .warrant and the affidavit omitted .to charge any offence, that is to say, that the word “knowing ” was omitted in both of them. The solicitor moved to amend the warrant by inserting the word “knowing,” the justice of the peace being present in court, and the court granted the motion. The counsel for defendant then submitted a motion to quash upon the ground that the word “knowing” was omitted in the affidavit and that no offence was charged in the affidavit; insisting that the prosecution was of course based on the affidavit and even if the court possessed the power to order an amendment of the warrant, still in this case it could not be done because the person who made this affidavit is beyond the seas, and is not within the jurisdiction of the court. *781The motion to quash was allowed, the case dismissed, and from this ruling the state solicitor appealed.

Attorney General, for the Stale.

No counsel for defendant,

Ashe, J,

The only question presented by the record for our determination, is, whether the warrant is'defective because the word knowing is omitted in the affidavit upon which it is based,

A magistrate, without information upon oath, may issue a warrant super visum. But except in that case, it is his duty before issuing the warrant to require evidence up.on oath of the guilt, or at least of circumstances affording a reasonable suspicion of the accused. Before the passage of the act of 1868-69, although it was necessary that every warrant, except for offences committed in the presence of the magistrate, should be founded upon information on oath, it was not essential to its validity that the evidence upon which it was issued should be set out in it. In England it was usual for magistrates to take written affidavits of the charge separate from any statement of the oath in the warrant, so that they might have at all times in their own power evidence in justification of issuing the warrant; and it was not necessary to recite in the warrant the information upon which it was founded, Welch v. Scott, 5 Ired., 72. But the law is now changed in this respect. By the act of 1869, Bat. Rev., ch. 83, § § 10, 11, it is provided that when complaint shall ■be made to a magistrate that a criminal offence has been committed, it shall be his duty to examine on oath the complainant and any witnesses who may be produced by him, and if it shall appear from such examination that any criminal offence has been committed, the magistrate shall issue .a proper warrant reciting the accusation, &c.

What we understand is meant by “reciting the aceusa*782tion,” is not a verbatim recital of the words of the affidavit or the evidence, but a plain brief narrative of the facts disclosed by the evidence, showing a violation of the criminal law. The act does not require that the evidence should be adduced in the form of a written affidavit, nor that the testimony of the witnesses should be induced to writing, but it would be safest for the magistrate in every case, for the purpose of his own protection, to take and preserve a written memorial of the evidence, whether of the prosecutor or his witnesses. Where a magistrate is taking cognizance of a criminal action within his jurisdiction, more certainty is required than in a case where he acts only ministerially,, in binding the accused to court; for in criminal actions before magistrate the warrant is to be treated as the complaint of the prosecutor under oath. In other words, it is the “indictment,” and must set out the facts constituting the offence with such certainty that the accused may be enabled to judge whether they constitute an indictable offence or not, and that he may be enabled to determine the species of offence with which he is charged. If the warrant does this, it is sufficient, notwithstanding there may not be the same degree of certainty in the affidavit or evidence taken, as the ground of application for the warrant. The evidence not being required to be put in writing, the affidavit of the complainant does not constitute an essential part of the indictment, any more than does the presentment of a grand jury form a part of the bill of indictment which is predicated upon it. An appellate court in reviewing the judgment of a justice’s couit in a criminal action, can only look at the warrant which is the complaint, and if that sufficiently sets out a criminal offence within its jurisdiction, it must be sustained. It cannot look behind the warrant for objections lying in the defects or irregularities of the preliminary evidence.

The power of the criminal court to allow an amendment *783of the warrant in this case, is not presented for our consideration by the appeal, and we therefore express no opinion upon that point. But we take this occasion to suggest, that as justices of the peace are clothed with a large jurisdiction in criminal matters, and are almost universally men who are unlearned in the law, very liberal powers of amendment should be accorded them in the administration of the criminal laws, that offenders may not escape the jusUpenalties of their crimes by opposing technical objections.

There is error. Let this be certified to the criminal court of New Hanover county, that further proceedings may be had according to law.

Error. Reversed,