THE ZIERK CASE.

Evening Star, Issue 4139, 2 June 1876, Page 2

THE ZIERK CASE.

At the Supreme Court, this morning, Mr Justice Williams delivered the following decision in the above case:— This was a rale calling on James Caldwell, keeper of the common gaol at Dunedin, to show cause why a writ of habeas corpus should not issue in the mat: ter of Emily Ziefk,a prisoner, and why, if the rule be made absolute, the said Emily Zierk should not bo discharged withput the writ actually issuing. ■The prisoner bad. been convicted bytwo Justices for stealing an antimacassar of the value of 17s fid, und had been sentenced to one month’s 'mprisonirient. with hard. labor. The main points urged in support of the rale were—first, that the warrant of commitment WAS hod on the face of it, and secondly, that the prisoner- had been wrongfully arrested, that she bod not been summoned as required by law, and that therefore the Justices were not properly seised of the case, and hodno jurisdiction to try ft. The warrant bf commitment is addressed to the Chief Constable of Dunedin and to the keeper of the common gaol at Danedia. The warrant is in the u-hM form I it sets out the conviction and commands the Chief equitable t J .tyke pad fioprev Emily Zierk to the common mol at Dunedin, ana deliver her to the keeper of the gaol; it farther comumsds tk9 keener of the mol to detain her there. |t is objected that the warrant ig void, gs there is no officer answering to the designation of the Chief Constable of Dunedin. There is nothing iu the affidavits filed to show that thorp is no snob officer, and Ido.ndtthink that- the Court will take judicial notion Of the fact that there is no such officer, ovienuf snob afoot exists. I see up reason why thfi words "Chief Constable of Dunedin" should pot roffloleptijr deg|||uftt# the Obifif Q&m of ih Dqhedjn. {n an* case, atf the pfisoqer is now In the pfopor custody,! should hesitate ltd set aside 'thewarrant on the ground urged, air less it had been made deer on' the' most undoubted authority that such an . objectf?| fltjate warrant aw^ysthef.

It appears from the affidavits that a search warrant bad been issued for goods other than the anti* maoaiaar in respect of which the prisoner was convicted, the property of one Timothy Hayes. The warrant was addressed to the Chief Constable of

Dunedin; it did not embody the name of tb&Jastioe of the peace who signed it, nor did itlnanyway refer to the prisoner, out mentioned the hams of her htisband only as the person in whose tanbb the goods in question were suspected to be concealed. Two detective officers proceeded to execute the. warrant, and demanded admittance to the hQttse df the prisoner’s husband between 8 and 9 o’dloek'on the evening of the 22nd of May. They searched the house, seized some of the articles mentioned in the warrant, and also. the antimacassar; charged the prisoner with stealing them, and arrested her. They then took her to the house of Timothy Hayes, returned with her, and searched her husband’s house again, and subsequently took her to the bouse of one who identified the antimacassar as her property. Tfie looked up at the police station, and the following morning brought before two Justices at the Justices of the Peace Court. When she was brought up her solicitor applied tor an adjournment and tor he discharge •'from custody, - that her arrest and detention in custody were nbt justified under thS seardih-warrant. The ease was adjourned till the Ssth of May, and the prisoner released on tail. On that day -the prisoner appeared, and Aim Diamond was placed In the witness-box and swdre tci an information charging the prisoner Vlth stealing the OntimacaSSar, but prisoner’s counsel requested that fthe search : .warrant might be produced.bntthc justices declined to alio* its production. Her counsul furiber contended that, the wsrrapt - was void, that the prisoner had not b£en‘prOperly summoned, and. that she was illegally before the Court. The case, however, was proceeded with, the witnesses were oross-examinedTiy the prisoner'scounsel, and the prisoner was convicted and. sentenced. After she was sentenced Hayes was sworn, and gave evidence against'the prisoner bn taother charge of larceny.. Henderson, the detective! alsb gave evidence! and the search warrant was produced. .On its prodUc-. tlon the prisoner’s counsel reserved: 4>is objections to its validity, and the Justices dismissed the charge apparently on the ground of the Invalidity of the warrant. It appears to me* that any defects in thq warrant are cured by-the 26th section of the Justices of the Peace Act, I$S6, but even if thisWei‘B net so. and the warrant were defective and void, it by no means follows that the prisoner was illegally in custody. A constable having reason to suspect : that a person has committed- a felony may arrest and detain him without a waiffant until he can be brought'before a justice of the peace (Samuel v. Payne, 1, Douglas, 569; BeokurUs v. Pbilby, B and C, 635), and a constable may also without a warrant enter a house at night and apprehend the person so suspected (Davis v. Bussell, 5, -Bing, 851). If two constables therefore had reason to suspect that the accused had committed a felony they were justified in arresting her withont warrant; and the fact that shb WaS csnvicted shows that the suspicion of the constable was well founded. ..If the warrant were void, or if-the con-, atables seized under it articles not included in it and not stolen, the prisoner's husband mayhave a remedy against the constables for searching his honsd and taking away his property ; = but I do not see bow the* gcodnbssor badness of.the warrant can affect the legality of the arrest, when the arrest would have been legal without any warrant at all. If it be the cose that the only reason for which the second charge ,of larceny was dismissed was that the search warrant was informal and the .arrest ir-

regular, tlx&t does not, show that she. Ought to have been discharged in tRe first case, but simply that in the second case the magistrates have ened in tiieir view of the law. The prisoner therefore being lawfully in custody, what effect has the absence of a summons, on the regularity of the subsequent proceedings P ft is clear that the issue or., service of a summons is not an absolute necessity to give the magistrates jurisdiction. If it w ; ere so the necessity for the issue and service of the summons vould not be dispensed with, even with the consent of the defendant, and •there ia ample authority to show that if the defendant Appears any irregularity in tim summons, or even the want of a summons, altogether becomes immaterial. (Poley on OnvictionH, ed. 5, p. 97, and coses there cited.) It was decided in ,B. v. Aitken, 3 Bar, 1785, thdtif the defendant appeared and denied his gnut, but did not desire farther time to produce his evidence or to prove his .innocence,,he had waived any .objection that, ho was hot snmmoqied. In the present case the prisoner denied her guilt and her counsel cross-ex-amined witnesses. It' is true * that' her counsel objected that she had not been summoned, but he did not apply to have the, case postponed on that account, and went in to the defence on the tperits* I think if the prisoner had intended to insist on the objection to his .want of- a summons her.pUnnselshould not have entered into the defence, and that his having done so was a waiver of the objection. (E. v. Clarke, 6. 2, 13,' 349.) Apart, however, from the question os *to whether- the prisoner had waived any objection to the non-issue .of $ summons, I do not think that any sunnpons was necessary. The,, prisoner had been properly hrrested, and it appears blear, from the facts set out in the affidavits, that she was brought tip before the magistrates to answer the charge of stealing the property qf Diamond and Hayea. It Would have oeen competent, therefore,. for the Justices, under the 25th section of the Justices of the Peace Act, to hear and . determine the case without receiving an information in writing, and no summons would have beeu«necesaanr. Erne discharged, with costa.