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ter's official rank is said to be liable, for the reason that he voluntarily perpetrates an unlawful act, to conviction for the aggravated offence. But this exception is to be jealously limited. It is against the policy of the State to clothe its servants with official immunities, except when engaged in official acts. The immunity belongs not to the individual but to the office ; and if the immunity is to be vindicated, the office must be proclaimed. To punish resistance to a secret officer as a crime turns first the officer into a spy, and then the spy into a despot.
It should at the same time be remembered that though an officer attempting to execute process be unauthorized, and therefore a trespasser, yet he is not bound to submit to unreasonable and unnecessary violence, and may defend himself against the same without being guilty of an assault. Nor is a blow necessary to constitute the offence of resistance. There must, however, be some actual overt act of obstruction.6
$ 650. An indictment for resisting an officer while attempting to serve a lawful process need not describe particularly the
Indictnature of the process, or the mode of the resistance. But
ment need the indictment must set forth that such process was legal, not set or so describe it as to show it to be so; and if issued from cess in a court of limited jurisdiction, it must appear that the court, in issuing it, acted within the sphere of their authority. It
I U. S. v. Liddle, 2 Wash. C. C. 1875. Under 'Texas statute, see Hill 205, 1808; U. S. v. Ortega, 4 Ibid. v. State, 43 Tex. 329, 1875. 531, 1825; U. S. v. Benner, Baldwin, 6 Com. v. Sheriff, 3 Brewst. 343, 234, 1830. Supra, & 87.
1869. In U. S. v. Lukins, 3 Wash. C. 2 It is no defence to an indictment C. 335, 1818, it was said obiter that for forcibly obstructing an officer of refusal to obey an officer is indictable the customs in the discharge of his resistance. This is disapproved in duties, that the object of the defen- State v. Welch, 37 Wis. 196, 1875, as dant was personal chastisement, and without authority and reason. not to obstruct or impede the officer McQuoid v. People, 3 Gilm. 76, in the discharge of his duties, if he 1846. knew the officer to be so engaged. U. 8 U. S. v. Stowell, 2 Curtis C. C. S. v. Keen, 5 Mason, 453, 1820. 153, 1854; State v. Scammon, 22 N. H.
3 People v. Murray, 7 N. Y. Sup. 44, 1850 ; State v. Beasom, 40 N. H. 548, 1889.
367, 1860; Cantrill v. People, 3 Gilm. * People v. Gulick, Hill & Denio, 356, 1846; Bowers v. People, 17 III. 229, 1843.
373, 1847; State v. Hailey, 2 Strob. 73, • Roddy v. Finnegan, 43 Md. 490, 1847; Slicker v. State, 8 Eng. (13 Ark.) 1875: Woodworth v. State, 26 Ohio 397, 1853. See State v. Henderson, St. 196, 1875. Under Wisconsin stat- 15 Mo. 486, 1852; State v. Burt, 25 ute, see State v. Welch, 37 Wis. 196, Vt. 373, 1853. And see contra, State
v. Belk, 76 N. C. 94, 1877.
officers under same sanction.
And so of officers
is not enough to say that the defendant “resisted” the officer ; for this is a mere conclusion of law. 651. Municipal and police are, equally with State officers, under
the protection and subject to the limitations of this branch Municipal and police of the law.?
$ 652. Officers charged with process are eminently under the protection of the law, and to forcibly resist them is therefore not only an indictable offence, but, if amount
ing to an obstruction of process, is a contempt of court, charged with pro- summarily punishable as such. If a party assist in resist
ing a criminal arrest, he may become thereby an accessary after the act, by endeavoring, if the case be one of felony, to shelter the accused, while if the offence be misdemeanor (or, according to the old authorities, treason) then by the old common law a party aiding in resisting the arrest is indictable as a principal in such offence. Now, however, that the common law offence of accessaryship has become generally obsolete, the offence is tried in most jurisdictions as a substantive felony or misdemeanor, as the case may be.? It is within the election of the prosecution, however, to treat the offence as a substantive misdemeanor, waiving its accessorial character; and in most jurisdictions this is required by statute.
| Lamberton v. State, 11 Ohio, 282, 493, 1880; U. S. v. Fullhart, 47 Fed. 1842; though see U. S. v. Batchelder, Rep. 802, 1891. Infra, & 1380. As to 2 Gall. 15, 1814; State v. Hooker, 17 who is an officer in this sense, see MaVt. 658, 1845.
verty v. State, 10 Lea, 729, 1882. An indictment for assaulting and 4 Whart. Cr. Pl. & Pr. 1949 et sen. obstructing an officer in the discharge Supra, & 241 ; 4 Bl. Com. (Wend. of his duties as such averred that the ed.) 129-30; Dalt. 530; i Hale, defendant made an assault upon the 619; 2 Hawk. c. 29, s. 26; R. v. Marsofficer, and, while the latter was in den, L. R. 1 C. C. 131, 1868; 11 Cos the due and lawful execution of his C. C. 90; U. S. v. Tinklepaugh, 3 office, did “unlawfully, knowingly, Blatch. 425, 1856; Slicker v. State, 13 and designedly hinder and oppose Ark. 397, 1853. him,” etc.; this was held to be a suffi- 6 See R. v. Marsden, L. R. 1 C.C. cient allegation that the defendant 131; 11 Cox C. C. 90, 1868; State l'. knew that the person assaulted was Downer, 8 Vt. 424, 1836; State . an officer. Com. v. Kirby, 2 Cush. Buchanan, 17 Ibid. 573, 1845; Com. 577-8, 1844.
V. Miller, 2 Ashm. 61, 1839. As to ? Johnson v. State, 30 Ga. 426, 1860. rescue, see infra, & 1680.
& 414; Whart. Cr. Pl. & ? Infra, 8? 1677, 1680. Pr. l 1-5; Phillips v. State, 66 Ga. 8 R. v. Cumpton, L. R. 3 Q. B. D. 755, 1881. Under federal statute, see 341, 1880; R. v. Bailey, L. R. 1 C.C. U. S. v. Martin, 17 Fed. Rep. 150, 347, 1872; Woodworth v. State, 26 1883; U. S. v. Kindred, 4 Hughes, Ohio St. 196, 1875.
It is not necessary that there should be a blow struck or force actually applied, though it is essential that the resistance should imply the application of force, actual or threatened ; mere vituperation not constituting the offence, unless there be an apparent intention to resist by force. But whether the process be criminal or civil, resistance to its execution, whereby such execution is hindered, is an indictable offence. The officer's title is not at issue in such a prosecution, when it appears that he is an officer de facto, i. e., the
recognized official representative of a government in actual power. The process, however, must be legal primâ facie, since if this test were not applied everybody could arrest everybody else. When “legally appointed and duly qualified” is averred, these averments must be proved.19 Merely technical defects on the writ, however, cannot be set up as a defence. Knowledge that the person resisted is an officer, however, must be shown, though this knowledge may be inferred from all the circumstances of the case. 12
$ 652 a. The converse of what has just been stated is true in regard to the duty imposed upon citizens to aid officers when in the lawful discharge of their duties. As is noticed more
entitled fully ip another work,13 “ This duty of the citizen is abso- to call lute.
His obligation to come to the aid of the
1 U. S. v. Lukins, 3 Wash. C. C. State v. Black, 109 N. C. 856, 1891 ; 335, 1818; U.S. v. Bootie, 2 Burr. 864; Garrett v. State, 89 Ga. 446, 1892. Woodworth v. State, 26 Ohio St. 196, Supra, & 648. 1875; Heath v. State, 36 Ala. 273, See, on this subject, Whart. Cr. 1862.
Pl. & Pr. & 966. Infra, % 1572 d. ? See supra, 2% 604, 646; State v. Supra, & 646; Whart. Cr. Pl. & Moore, 39 Conn. 244, 1872.
Pr. 237 et seg.; Com. v. Cooley, 6 Gray, 3 Com. v. Sheriff, 3 Brewst. 343, 354, 1856; Cantrill v. People, 8 Ill. 356, 1869 ; State v. Welch, 37 Wis. 196, 1846; State v. Shelton, 79 N. C. 605, 1875.
1879. As to tests, see Whart. Cr. * See Whart. Cr. Pl. & Pr. 22. 4 et seq. Pl. & Pr. 86, 1878.
5 U. S. v. Wood, 2 Gall. 361, 1815 ; " See supra, ? 402, 444, 648. State v. Bateswell, 105 Mo. 609, 1891 ; 10 State v. Sherburne, 59 N. H. 99. Whart. Crim. Ev. & 833. Supra, 2% 11 Supra, ?? 402-444; Com. v. Mar646 et seq.; infra, & 1617.
tin, 98 Mass. 4, 1867 ; People v. Mead, 6 R. v. Newton, 1 C. & K. 469, 1844; 92 N. Y. 415, 1883; McQuoid v. PeoMorse v. Calley, 5 N. H. 220, 1830; ple, 3 Gilm. 76, 1846 ; Nolty v. State, Com. v. Dugan, 12 Metc. 233, 1847; 17 Wis. 668, 1864; Graham v. State, State v. Carroll, 38 Conn. 448, 1871; 29 Tex. App. 31, 1890. People v. Hopson, 1 Denio, 574, 1845; Supra, & 649. Whart. Cr. Pl. & Roddy v. Finnegan, 43 Md. 490, 1878; Pr. 27. State v. Johnson, 12 Ala. 840, 1847; 13 Whart. Cr. Pl. & Pr. % 17, note.
sheriff (or other officer) is just as imperative as that imposed on the latter to see that the community suffer no harm from licentious
King, J., cited Ibid. ; and see 5 Whart. 437, 1840 ; Anon., 1 Haz. U. infra, & 1584; R. v. Brown, C. & M. S. Reg. 263; Garrett v. State, 89 Ga. 314, 1841; Resp. v. Montgomery, 1 446, 1892. Yeates, 419, 1795; Comfort v. Com.,
POINTS REQUESTED FOR THE DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS CHARGES.
Self-defence. Improper Charge Concerning Quarrel. Defendant requested the court to instruct the jury “that if the defendant went to M.'s house to commit any offence against the law, but abandoned such intention and attempted to avoid a difficulty with his adversary, M., and was then pursued, his right of self-defence revived, and he had the right to kill his adversary to prevent being killed or any serious bodily injury to himself, and if the jury so find they will acquit the defendant.” Refused. Held, on appeal, error. McSpatton v. State, 30 Tex. App. 616, 1892.
A Forcible Retaking of Stolen Property is Not an Assault. The court instructed the jury, at the request of the State, that “even though they should believe that Richard T. Bennett and George C. Evans irregularly or improperly obtained possession of the horses in controversy, yet such fact would not justify defendant in retaking the same by force, nor by the use of a deadly weapon." Held error, as the evidence showed that the horses ha been taken formerly from the defendant, who in good faith claimed possession of them. State v. Dooley, 121 Mo. 591, 1894.
Shooting Case. Erroneous Charge. It was held error for the court to assume in its charge, as a matter of law, that to discharge a gun loaded with powder only at a person not more than fifteen steps distant would constitute the statutory offence of shooting at another, as the law fixes no maximum or minimum distance. Clark v. State, 84 Ga. 577,
1890. Charge that Drunkenness is No Excuse Held Erroneous. Where there is evidence that the defendant was too drunk to be able to form an intent, on trial for assault with intent to murder, it is error for the judge to instruct the jury in-the language of Rev. St. Ill. 1889, c. 38, 1 291, that“ drunkenness is no excuse for the commission of any crime or misdemeanor, unless such drunkenness was occasioned by the fraud, connivance, or force of some other person for the purpose of causing the perpetration of an offence.” Such an intent to murder constitutes the gist of the offence. Crosby v. People, 137 Ill. 325, 1891.
Charge Relative to Character. An instruction on the trial of an indictment for assault with intent to murder, that defendant is not on trial for having a good or bad character; that the jury are not to take into account his good or bad character; and that if the allegations are not supported by the proof beyond a reasonable doubt, they must acquit. Held error. Jones v. State, 96 Ala. 102, 1892.
Right to Protect Property by Necessary Force. Where the facts were that the prosecutor was driving on the side of a beaten road where defendant was cutting the grass, when the alleged assault took place; the defendant requested the court to charge “that the defendant had a legal right to cut the grass on his side of the highway; that the grass there growing belonged to him as much so as the grass growing on any other part of his farm; and for the purpose of harvesting the grass so growing on his side of the highway he had a right to be there in person for that purpose, either of his own right or as the servant of his father, who appears to be the owner of the land, so long as he did not interfere with the free and ordinary use of the highway for public travel.” And also that defendant had a right to protect the grass, and in so protecting it from being run over and destroyed by Stieman he would be justified in using as much force as would be necessary to keep Stieman from destroying it; and if the jury found that no more force was used than was necessary to protect it, their verdict should be for the defendant. Refused. Held error. People v. Foss, 80 Mich. 559, 1890.