uty sheriff, coroner, constable, or other officer of this state, or other person duty authorized, in serving or attempting to serve any lawful process or order of any court, judge or justice of the peace, or any other legal process whatsoever, or shall assault or beat any sheriff, deputy sheriff, coroner, constable or other officer, or person duly authorized, in serving or executing, or attempting to serve or execute, any process or order aforesaid, or for having served or executed, or attempted to serve or execute, the same, every person so offending shall be fined not exceeding five hundred dollars, and imprisoned not exceeding one year.'

STATEMENT OF THE OFFENSE OF RESISTING AN OFFICER.2

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, unlawfully, knowingly and willfully did obstruct, resist and oppose the said A. B., then and there being a constable3 in and for said county, in his, the said A. B.'s attempting in the due execution of his duty as such constable' to serve a lawful process, to wit., a warrant in behalf of the Peo

1 R. S., 389, § 244. It is not a punishable offense under this section to resist a peace officer while attempting to make an arrest without a warrant; State v. Lowell, 23 Iowa, 304; but see Com. v. Lee, 107 Mass., 207; or to resist an overseer of highways in the discharge of his duties; State v. Putnam, 35 Iowa, 561. For statute relating to resisting the execution of search warrants for records, etc., see R. S., 384, § 218, ante § 152; and for statute relating to refusing to join posse, see R. S., 389, § 245, ante § 200.

2 For forms of indictments, see McQuoid v. People, 3 Gilm., 77; Bowers v. People, 17 Ills., 373; State v. Freeman, 8 Iowa, 429.

3

4

It is not necessary to aver that the officer was legally elected and duly qualified; still if the averment is made it has been held so far descriptive in its nature as to require the prosecutor to prove it on the trial. State v. Copp, 15 N. H., 212. The words "then and there being constable of the said county" have been held to be sufficient. State v. Hooker, 17 Vt., 658; Bowers v. People, 17 Ills., 373; but see Rountree v. United States, 1 Pin. Wis., 59. The words "lawful process" are necessary; State v. Burt, 25 Vt., 373; Cantrill v. People, 3 Gilm., 356; State v. Harley, 2 Strob., 73; U. S. v. Stowell, 2 Curt. C. C., 153; State v. Beasom, 4 N. H., 367, and sufficiently aver the jurisdiction of the officer issuing the process. McQuoid v. People, 3 Gilm., 79; Bowers v. People, 17 Ills., 373; State v. Dickerson, 24 Mo., 365; contra, State v. Tuell, 6 Blackf., 344, and contain a sufficient description of it without setting it out in the very words; McQuoid v. People, 3 Gilm., Bowers v. People, 17 Ills., 373; Sticker v. State, 13 Ark., 397; contra, State v. Henderson, 15 Mo., 486.

76:

ple of the State of Illinois against the said C. D., issued on the

day of

A. D. 18, in said county, by L. M., then and there at the time and place last aforesaid being a justice of the peace in and for said county, duly qualified and commissioned,' contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

§704. What not a Defense to an Indictment for Resisting an Officer Threatening to Resist. - The better opinion seems to be, though the authorities are conflicting upon the question,2 that third persons are indictable for resisting an officer de facto, because the law does not permit them to test in this way the legality of the claim to office of those who hold and commonly exercise the office under an apparent right, but provides a proceeding by quo warranto for the purpose of testing such right. One who knowingly obstructed a public officer in the discharge of his duty cannot defend himself when indicted by showing that his object was the personal chastisement of the officer. A mere threat of resistance to a lawful process is not an offense under the statute; but if where an officer proceeds with his process to the land and is about to execute it, a threat is made by a person forcibly retaining the possession, accompained by the exercise of force, or having the capacity to employ it, and the officer does not execute the writ, the offense is complete.

1 It is not necessary to describe the particular mode of resisting the offcer; McQuoid v. People, 3 Gilm., 76; U. S. v. Bachelder, 2 Gallis, 15; State v. Copp, 15 N. H., 212; Lamberton v. State, 11 Ohio, 282; Farris v. State, 3 Ohio S., 159; contra, State v. Downer, 8 Vt., 424; State v. Burt, 25 Vt., 373; or to state the place at which the process was delivered to the officer, State v. Hooker, 17 Vt., 658; or to allege that the officer informed the defendant that he acted under authority of a warrant; State v. Freeman, 8 Iowa, 428.

21 Bish. Cr. L., § 464.

3

People v. Hopson, 1 Denio, 574; Taylor e. Skrine, 2 Const. S. C., 696; People v. Stevens, 5 Hill, 630; Com. v. Dugan, 12 Met., 233; Rex v. Gordon, 1 Leach, 515; Reg. v. Newton, 1 Car. & K., 469; Muir v. State, 8 Blackf.,

154; State v. Boies, 34 Me., 235; Heath v. State, 36 Ala., 273; Com. v. Kirbey, 2 Cush., 577.

4

People v. Stevens, 5 Hill, 630; McKim v. Somers, 1 Pa., 297; Aulimer v. Governor, 1 Texas, 654; In re Boyle, 9 Wis., 264.

$705. Evidence. A justice of the peace who issued a civil process is a competent witness to prove his official character upon the trial of an indictment for resisting the process.1 It is not necessary to produce any record or written evidence of the election, appointment, or qualification of a constable or police officer, it being sufficient in proof that he was known to act as such officer. It must be shown that the process was lawful; therefore, on the trial for an assault and battery in resisting the jailer, it was held that the prosecutor must produce the mittimus to show that the jailer had the legal right to retain the defendant. It must appear that the defendant had notice or knew the officer's business.5

§706. Defense - Want of Authority of Officer. -If an officer or person endeavoring to make an arrest or enter a house has no legal authority for that purpose, or if in certain cases he abuses such authority and does more than he is authorized to do, or if it turns out in the result that he has no right to enter, then the party about to be imprisoned, or whose house is about to be illegally entered, may resist the illegal imprisonment or entry by self-defense, not using any deadly or dangerous weapon, or any more force than is necessary, and may escape or be rescued, or even break prison, and others may assist him in so doing."

$707. Continued - Illegal Process, etc. A person in the protection of his person or property may forcibly resist an officer unless the latter is acting under process against him. As if

'Oliver v. State, 17 Ark., 508.

22 Bish. Cr. P., §§ 824, 885; Com. v. Kane, 108 Mass., 473; Com. v. Tobin, 108 Mass., 426; Rex v. Gordon, 1 Leach, 515; Butler v. Ford, 1 C. & M., 162.

Barb. Cr. L., 82; Roscoe Cr. Ev., 625, 626; People v. Muddoon, 2 Park. Cr. R., 13; McQuoid v. People, 3 Gilm., 76; Bowers v. People, 17 Ills., 373. People v. Muddoon, 2 Park. Cr. R., 13; and see Rex v. White, Cald.,

183; Boyd v. State, 17 Ga., 194; State v. Shaw, 3 Ired., 20.

7

Cooke v. Birt, 5 Taunt., 765; Rex v. Watts, 1 B. & Adol., 166.

1 East P. C., 295; 1 Hale P. C., 457, 464, 465, 583, 599.

Rex v. Osmer, 5 East, 304, 308; 1 Smith R., 555; U. S. v. Gay, 2 Gallison, 359, 361.

an officer attempts to take the property of one person on an execution against another he may be forcibly resisted.' Where one is justified in resisting an officer on the ground of the officer's being without a warrant, or having only an im perfect one, his justification is effectual equally whether he knew of the omission or not.2 There must be an active obstruction, resistance or opposition to bring a case within the statute. Merely taking charge of a debtor's property, keeping it out of the officer's view, and refusing when called on by the officer to produce it, is not enough. If a man takes from a justice of the peace a writ and refuses to give it back, thereby stopping the proceedings in the case, he does not commit the statutory offense, whatever may be his common-law liability.'

8. WITNESSES.

-

708. Provisions of the Statute. "Whoever, by hiring, persuasion or otherwise, induces any witness in any criminal cause, or any person having knowledge of any fact tending to show the guilt or innocence of any person suspected or charged with having committed a crime to leave the state, or secrete himself, so that he cannot be produced as a witness at any examination or trial of the person so suspected or charged, shall be fined not exceeding one thousand dollars, or confined in the county jail not exceeding one year, or both."5

1 Wentworth v. People, 4 Scam., 550; Oliver v. State, 17 Ark., 508; contra, State v. Richardson, 38 N. H., 208.

'State v. Lovett, 3 Vt., 110; State v. Hailey, 2 Strob., 73; State v. Henderson, 15 Mo., 486; State v. Noyes, 25 Vt., 415.

6

R. S., 393, § 272. At common law it was indictable to dissuade or otherwise hinder a witness from appearing before a court and testifying: Russ. on C., 183; 1 Bish. Cr. L., § 468; State v. Keyes, 8 Vt., 57; State v. Early, 3 Harring., 562; because it was calculated to pervert public justice; State v. Carpenter, 20 Vt., 9.

STATEMENT OF THE OFFENSE OF INDUCING A WITNESS TO BE ABSENT ON THE TRIAL OF A CRIMINAL CAUSE.

(Commence as in form on page 35) that C. D., on, etc., at., etc., in the said county, unlawfully did induce one E. F., then and there being a witness' in a criminal cause (wherein one G. H. had before that time, to wit., on the ——— day of ———, A. D. 18—, in the circuit court of the said county, been duly indicted for the crime of larceny, and was then, at the time first above mentioned, and there in the said criminal cause duly charged with having committed the said offense, which said criminal cause was then, at the time first above mentioned, and there pending in the said court and undetermined) to leave the said state of Illinois, so that he could not be produced as a witness on the trial of the said G. H., for the said crime so charged as aforesaid, by then, at the time first above mentioned, and there persuading the said E. F. so to leave the said state of Illinois; the said E. F., then, at the time first above mentioned, and there having knowledge of certain facts tending to show the guilt of the said G. H. of the said crime,3 contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

$709. Evidence. The effect of the act and intent of the offender is the same, whether the witness has been or is about to be served with a subpoena, or about to attend in obedience to a voluntary promise. Any attempt in either case is equally criminal and equally merits punishment. It is not necessary to prove the materiality of the witness induced to leave.5

'It is not necessary to allege in whose behalf the witness was summoned or that his testimony was material. Com. v. Reynolds, 14 Gray, 87.

2 The indictment need not be recited. State v. Carpenter, 20 Vt., 9.

The indictment need not conclude "to the obstruction and hindrance of

public justice." Com. v. Reynolds, 14 Gray, 87.

State v. Keyes, 8 Vt., 57; State v. Carpenter, 20 Vt., 9.

'State v. Early, 3 Harring., 562.