State v. Ferry

61 Vt. 624

• Court: Supreme Court of Vermont
• Decided: August 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

I. It is sufficiently alleged that Stevens was a «deputy sheriff; no further allegation in that respect is necessary. State v. Hooker, 17 Vt. 671.

II. The indictment is not bad for duplicity; it charges the Respondents with assaulting Stevens and by so assaulting him that they impeded him in the execution of his office. It was necessary that the pleader should set forth the manner in which the officer was impeded, and if by assault, it should be so alleged.

III. The indictment sufficiently sets forth the manner in which ’Stevens was attempting to execute the process, viz.: “by attempting to apprehend the body of one Julia Whitcomb,” and the time when he was so attempting is directly alleged as the 18th ■day of August, 1888.

IV. R. L. s. 1348 requires a wilt of habeas corpus to be made returnable forthwith. The writ in question was returnable the first secular day after its issue; we think that was forthwith within the meaning of the section. Whether the respondents could take advantage of the defect, if it was not, we ■do not decide. The statute does not forbid a judge from naming the day when the person detained shall be brought before him, •and it certainly does not require him to name the hour. What the rights of a party may be, when in attempting his liberty,, a writ is made returnable after many months, is not the question before us. The subject of the writ is not the one complaining here. An officer-after receiving a writ of habeas corpus has-from three to twelve days to serve and return it, R. L. s. 1355, depending upon the distance of the place of imprisonment from: the place of return. It is in all cases, undoubtedly, more convenient for all parties interested to have some day named whenthé judge signing the writ will hear the case, than to have no-time assigned and the time left uncertain.

V. The respondents claim that it should be alleged in the indictment that the writ of habeas corpus which the officer was-attempting to serve, was duly returned, citing the case of Wright v. Marvin, 59 Vt. 137. In that case the defendant had taken property upon a writ of replevin, and made no return) either of the writ or bond. The court held in an action of trover for the property that he could not justify by showing the-service of the writ alone, but that he must show its return. Whatever may be the rulings of the courts in civil cases as to> property rights which depend upon proceedings in the courts,, we think it- good law and sound doctrine, to hold in criminal cases that no person has a right to assault a public officer,- in the-line of his duty, while engaged in the service of process, the process being strictly legal, and the acts of the officer in good faith, whatever the subsequent irregularities in the proceedings-may be. Stevens is not a party; the proceeding is not for his benefit; the public are prosecuting for an alleged crime; the defendants were third parties, with no right to interfere to prevent the apprehension of Whitcomb. If the claim- of the respondents-in this respect is a tenable one, it would only be necessary fin-an evil disposed person to so assault and batter an officer in the execution of process as to render it impossible for him to return it, to afford him a perfect shield and defense to his illegal acts;: and it would necessarily follow that an officer might be assaulted, without redress, while engaged in the discharge of acts enjoined upon him by law, acting in good faith, in the strict line of duty. 'While the rule adopted in Wright v. Marvin, supra, is a salutary one and clearly correct, upon the facts in that case, it by no means follows that in all civil cases an officer cannot justify ■under mesne process, without showing its return. See State v. Daggett et al., 2 Aik. 148. We are not called upon, however* to discuss or consider these questions. The .indictment, in respect of this objection, is good.

VI. It is insisted that it is not alleged that the respondents knew the official character of Stevens at the time of the acts -complained of. There is but one allegation of time in the indictment, namely: the 18th of August, and the allegation they then and there well knew said Stevens to be a deputy sheriff as aforesaid,” refers to that time; the date of the 20th day of August is not an allegation in the indictment, but is a date in 4he writ which is set forth in hcec verha.

VII. We think a dull person would understand that it is alleged in the indictment that Stevens was attempting to make the arrest «nd not the respondents. It is certain in that respect.

The indictment is adjudged sufficient. Judgment affirmed ¿and cause remanded.

All concur.