State v. . Briggs

25 N.C. 357

• Court: Supreme Court of North Carolina
• Decided: June 5, 1843
• Status: Published

Opinion

Daniel, J.

If it was necessary to prevent the prosecutor from taking or carrying away from the presence of the defendant his personal property, he might strike in defence of the same, if the prosecutor was not then a lawful officer. To make the defendant criminal, the onus-lay on the State, to shew that the prosecutor was at the time a lawful officer, and armed with a lawful execution. The defendant not raising the objection at the time, in our opinion mokes no difference. The prosecutor certainly was not a lawful officer.— The County Court of Gates had no general authority to appoint constables for the county. The County Court, seven justices being present, may appoint a constable, if any of the' contingencies happen, which are mentioned in the 4th section of the 24th ch. of the Revised Statutes. The record of the appointment of the prosecutor to be constable, does not shew that any one of the said contingencies or events had occurred ; and there was no parol evidence, if competent, tending to supply that deficiency in the record.

Per Curiam. Judgment reversed and new trial awarded.