The opinion of the court was delivered by
Hebard, J.
A great variety of questions have been argued in this case; and we shall first dispose of those, that have arisen upon the motion in arrest.
In the first place, it is said that the indictment does not , allege that Adnah- Smith was sheriff of Addison county. In the first count the respondent is charged with having made an assault upon Smith, then and there being sheriff of said county of Addison. In the second count he is charged with having hindered and impeded a civil officer, under the authority of this State, to wit, Adnah Smith, sheriff of -the county of Addison aforesaid; and in both counts Smith is alleged to have been in the execution of his said office. We think this is a sufficient allegation, that Smith was sheriff; the allegation in the second count, though not expressed with as much • nicety of diction as the fact was susceptible of, is still direct, and in no way equivocal.
The next objection is, that it is not alleged that the sum due on the execution had.been demanded of the respondent, or that he had refused to pay it. This was not necessary to be done. It was a sufficient demand, when he was there with the execution, claiming of the respondent that he surrender himself upon it. If the respon[668]*668dent, for want of such demand, could not sustain an action for false imprisonment against the officer, then the want of such demand would not justify resistance to the officer, when making the arrest; and, consequently, it was not necessary to allege that a demand had been made.
It is farther objected, that it is not alleged that the execution ■was delivered to the officer within sixty days after its date ; nor that the officer attempted to execute it within its life. The indictment alleges that the execution was dated the 27th of September, 1842, that it was delivered to the sheriff, while it was in full life, on the 6th day of October, 1842, that it was attempted to be served on the 7th day of November, 1842, and that it was made returnable in sixty days from date. Id cerium, est, quod reddi cerium potest. That it might have been proved that it was delivered on some other day makes no difference; the allegation is direct, and the day alleged will stand for the true day, until some other is proved.
It is farther objected, that there is no allegation that the sheriff had the execution in his hands, at the time the resistance was made, on the 7th of November, 1842. It is alleged that he was in the execution of his duty as sheriff, and that, for want of property, on which to levy the execution, he attempted to serve and execute said writ of execution, as he was therein commanded, by arresting the body of the said Hooker, and that the said Hooker, then and there well knowing that said Smith was sheriff of the county of Addison, and that he then and there had said writ of execution to serve and execute, and was then and there attempting to serve and execute the same, did then and there impede and hinder the said Smith, while attempting to serve and execute said writ of execution. All these allegations, taken together, though not in terms, fully amount to the allegation, that the sheriff had the execution in his hands. How could he be in the execution of his duty as sheriff, and how could he be attempting to serve this execution, unless he had it in his hands 1
Another objection, though not much relied on, is, that noplace is alleged, at which the execution was delivered to the sheriff. The place where the execution is delivered is immaterial; the place where it is to be executed is important; and the time when it was delivered is material, — for the validity of the execution in some de[669]*669gree depends upon that. But it is not necessary to allege where the execution is delivered, for, if the officer has it in his possession in his precinct, it is of no importance whether he received it there, or in some other place.
It is farther insisted, that the indictment is insufficient to sustain a judgment upon this general verdict, because different grades of offences are charged in the different counts, requiring different punishments. The verdict being general, it is to be understood, that the jury found the respondent guilty upon all the counts; and if any one or more of the counts is sufficient, the court will render judgment upon such as are good; if all are good, then judgment will be rendered upon the count charging the highest offence. Such is the authority of the case of State v. Downer, 8 Vt. 424.
This briefly disposes of all the questions in relation to the sufficiency of the indictment.
The next question to, be noticed is the one in relation to the testimony of the magistrate, who held the court of inquiry, in relation to what the deceased witness, Smith, testified before him. There are two objections to this testimony. The first is, that the testimony of Smith was not given in the same case, as the one in which the magistrate testified. That it was between the same parties cannot be doubted. The proceedings before the magistrate were in the name of the State against the respondent. That the subject matter of the complaint before the magistrate and the indictment, upon which the respondent was tried, are identical is admitted. The complaint before the magistrate, and the holding to bail, is a mode provided by statute for commencing proceedings; and although the hearing before the magistrate is not technically a trial, still the proceedings are compulsory and adversary, the witnesses are compelled to attend and sworn to testify, and, upon the sufficiency, or insufficiency, of the proof, the accused is either set at liberty, or required to give bonds for his appearance at the county court, to take his trial upon the facts set forth against him. The hearing before the magistrate and the trial before the county court are therefore in the same case, and are only distinguishable, in this respect, from a civil trial, by the mode of proceeding which the statute has provided.
The other objection is, that the magistrate could not give the [670]*670words of the deceased witness. If this objection is to prevail, it is doübtful whether the testimony of a deceased witness could ever be used ; for it is hardly to be supposed that it would ever so happen, that the words of the witness could be repeated, as he spoke them. This testimony is to be received like other testimony, subject to criticism, and remark ; and the less accurate and precise the witness is, in giving this testimony, the less credit it should gain with the jury. This testimony must come like all other. If the witness is conscious of having omitted any important part of the testimony, or if that fact should be made to appear in any other way, $he jury may reject the whole of the testimony, as being unsatisfactory ; — but for this the court cannot reject it.
We are next to inquire in relation to the charge of the court. Upon this two objections have been urged. The first is, in relation to what the court told the jury, as to the respondent’s right to resist the sheriff, after he had made a forcible and tortious entry into the respondent’s house.
The case finds that the sheriff went to the respondent’s house with a legal process, for the purpose of serving it upon him, and found the outer
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The opinion of the court was delivered by
Hebard, J.
A great variety of questions have been argued in this case; and we shall first dispose of those, that have arisen upon the motion in arrest.
In the first place, it is said that the indictment does not , allege that Adnah- Smith was sheriff of Addison county. In the first count the respondent is charged with having made an assault upon Smith, then and there being sheriff of said county of Addison. In the second count he is charged with having hindered and impeded a civil officer, under the authority of this State, to wit, Adnah Smith, sheriff of -the county of Addison aforesaid; and in both counts Smith is alleged to have been in the execution of his said office. We think this is a sufficient allegation, that Smith was sheriff; the allegation in the second count, though not expressed with as much • nicety of diction as the fact was susceptible of, is still direct, and in no way equivocal.
The next objection is, that it is not alleged that the sum due on the execution had.been demanded of the respondent, or that he had refused to pay it. This was not necessary to be done. It was a sufficient demand, when he was there with the execution, claiming of the respondent that he surrender himself upon it. If the respon[668]*668dent, for want of such demand, could not sustain an action for false imprisonment against the officer, then the want of such demand would not justify resistance to the officer, when making the arrest; and, consequently, it was not necessary to allege that a demand had been made.
It is farther objected, that it is not alleged that the execution ■was delivered to the officer within sixty days after its date ; nor that the officer attempted to execute it within its life. The indictment alleges that the execution was dated the 27th of September, 1842, that it was delivered to the sheriff, while it was in full life, on the 6th day of October, 1842, that it was attempted to be served on the 7th day of November, 1842, and that it was made returnable in sixty days from date. Id cerium, est, quod reddi cerium potest. That it might have been proved that it was delivered on some other day makes no difference; the allegation is direct, and the day alleged will stand for the true day, until some other is proved.
It is farther objected, that there is no allegation that the sheriff had the execution in his hands, at the time the resistance was made, on the 7th of November, 1842. It is alleged that he was in the execution of his duty as sheriff, and that, for want of property, on which to levy the execution, he attempted to serve and execute said writ of execution, as he was therein commanded, by arresting the body of the said Hooker, and that the said Hooker, then and there well knowing that said Smith was sheriff of the county of Addison, and that he then and there had said writ of execution to serve and execute, and was then and there attempting to serve and execute the same, did then and there impede and hinder the said Smith, while attempting to serve and execute said writ of execution. All these allegations, taken together, though not in terms, fully amount to the allegation, that the sheriff had the execution in his hands. How could he be in the execution of his duty as sheriff, and how could he be attempting to serve this execution, unless he had it in his hands 1
Another objection, though not much relied on, is, that noplace is alleged, at which the execution was delivered to the sheriff. The place where the execution is delivered is immaterial; the place where it is to be executed is important; and the time when it was delivered is material, — for the validity of the execution in some de[669]*669gree depends upon that. But it is not necessary to allege where the execution is delivered, for, if the officer has it in his possession in his precinct, it is of no importance whether he received it there, or in some other place.
It is farther insisted, that the indictment is insufficient to sustain a judgment upon this general verdict, because different grades of offences are charged in the different counts, requiring different punishments. The verdict being general, it is to be understood, that the jury found the respondent guilty upon all the counts; and if any one or more of the counts is sufficient, the court will render judgment upon such as are good; if all are good, then judgment will be rendered upon the count charging the highest offence. Such is the authority of the case of State v. Downer, 8 Vt. 424.
This briefly disposes of all the questions in relation to the sufficiency of the indictment.
The next question to, be noticed is the one in relation to the testimony of the magistrate, who held the court of inquiry, in relation to what the deceased witness, Smith, testified before him. There are two objections to this testimony. The first is, that the testimony of Smith was not given in the same case, as the one in which the magistrate testified. That it was between the same parties cannot be doubted. The proceedings before the magistrate were in the name of the State against the respondent. That the subject matter of the complaint before the magistrate and the indictment, upon which the respondent was tried, are identical is admitted. The complaint before the magistrate, and the holding to bail, is a mode provided by statute for commencing proceedings; and although the hearing before the magistrate is not technically a trial, still the proceedings are compulsory and adversary, the witnesses are compelled to attend and sworn to testify, and, upon the sufficiency, or insufficiency, of the proof, the accused is either set at liberty, or required to give bonds for his appearance at the county court, to take his trial upon the facts set forth against him. The hearing before the magistrate and the trial before the county court are therefore in the same case, and are only distinguishable, in this respect, from a civil trial, by the mode of proceeding which the statute has provided.
The other objection is, that the magistrate could not give the [670]*670words of the deceased witness. If this objection is to prevail, it is doübtful whether the testimony of a deceased witness could ever be used ; for it is hardly to be supposed that it would ever so happen, that the words of the witness could be repeated, as he spoke them. This testimony is to be received like other testimony, subject to criticism, and remark ; and the less accurate and precise the witness is, in giving this testimony, the less credit it should gain with the jury. This testimony must come like all other. If the witness is conscious of having omitted any important part of the testimony, or if that fact should be made to appear in any other way, $he jury may reject the whole of the testimony, as being unsatisfactory ; — but for this the court cannot reject it.
We are next to inquire in relation to the charge of the court. Upon this two objections have been urged. The first is, in relation to what the court told the jury, as to the respondent’s right to resist the sheriff, after he had made a forcible and tortious entry into the respondent’s house.
The case finds that the sheriff went to the respondent’s house with a legal process, for the purpose of serving it upon him, and found the outer door fastened, and, not succeeding in having the door opened, that he burst it open by wrenching off the latch. The court told the jury that the sheriff had no right to break open the outer door, and that for so doing he was a trespasser, but that, if, after he had thus effected an entry into the house, he proceeded to arrest the respondent, the respondent had no right to resist him. No question is made, upon either side, but what the charge was correct in relation to the first breaking open the house. It is a familiar maxim of the law, that “a man’s house is his castle,” and that he has a right to defend it. How far he may carry his defence, and within what, bounds it must be restrained, is the subject of inquiry. A man has a right to defend himself against an unlawful aggression, to an extent that shall make his defence effective, without regard to consequences. Chitty, in his treatise upon criminal law, lays down the doctrine, in its broadest sense, that the breaking the outer door of a dwelling house, upon civil process, is unjustifiable. The inquiry, therefore, is, whether, having thus done what is unjustifiable, the sheriff may, by the means and aid of this unjustifiable act, proceed to do á lawful act.
[671]*671The officer, when he restrains the debtor of his liberty, justifies the act by the authority of the law, not by any natural right of his own to do so. It then presents this strange anomaly, that an officer, who has no authority, except what is delegated to him by the law for a specified purpose, can justify an attempt to restrain the liberty of another, when his purpose is aided and accomplished by an unjustifiable act, and a breach of the very law, under which he assumes to act. Mr. Chitty makes a distinction- between the killing an officer, thus breaking the outer door,' and one not an officer. But what shall be the effect of any resistance short of killing, he does not say. There are instances, in which an officer may be resisted, which he enumerates; and they are, — 1, When the warrant is defective, — 2, When it is not enforced by a proper officer, — 3, When it is executed out of the jurisdiction, — 4, When the wrong person is taken under it; so that, by this authority, it seems that the person of the officer is not so sacred, that all other rights must yield and be postponed to his. It would, by this, seem, therefore, that, in order to throw the shield of the law over an officer, so as to make it criminal for another to resist him in what he is attempting to do, certain requisites are necessary. He must not only be a legal and proper officer, but he must have a good and sufficient precept, which he is attempting to execute, and he must be attempting to execute it in a legal way. Was the officer attempting to execute his precept in a legal way, when hisjfo’si act was unjustifiable and against law?
There is another way of testing this, that I do not recollect was noticed in argument. After the respondent had made the resist-» anee, for which he is indicted, he was arrested by the officer. Now suppose the respondent had instituted proceedings to obtain a discharge from that arrest, — what would have been the inquiry, and what ought to have been the judgment ? Without answering the question, which I have proposed, we can see what has been the inquiry and what the judgment in analogous cases. There are certain times and occasions, on which persons are exempted from arrest on civil process, — such as witnesses, parties and jurors, in attendance upon court, and members of parliament, public ambassadors and their servants; and when such are arrested, and even committed oh execution, they are discharged from custody, and in some cases it has been held, that the court had the power to punish the officer [672]*672for arresting them. Bartlett v. Hebbes, 5 T. R, 686; 2 Johns. 294; 7 Johns. 538; Yelv. 29, note, and cases there cited.
When a man is wrongfully brought into a jurisdiction, and is there lawfully arrested, yet he ought to be discharged; for “ no lawful thing, founded on a wrongful act, can be supportedPer Lord Holt, in 11 Mod. 51. Where a person was detained without a writ, and afterwards, while thus detained, was arrested on a writ, he was discharged; 2 H. BÍ. 29. All. these legal maxims have their correlatives. When A. unlawfully attempts to arrest B., B. may lawfully resist him. Whatever I may lawfully enjoy, I may lawfully defend. In the protection of my own rights, whatever it is unlawful for another to do, it is lawful for me to prevent him from doing.
In the present case, then, if it was unlawful for the officer to break open the house, in order to arrest the respondent, it was lawful for the respondent to prevent him from doing it. The breaking and arresting were dependent, one upon the other, and are not to be disconnected. The breaking was for the purpose of arresting, and the arresting was consequent upon the breaking. It would therefore seem to follow, that, if one was unlawful, the other was equally so.
The case of Semayne v. Gresham, from 5 Co. 91, reported in Yelverton 29, has been cited by the attorney for the government. All that can fairly be deduced from that case is, that the officer cannot break the outer door, and that the defendant, when he sees the sheriff coming, may shut his door against him ; for that is all the defendant did, and it was for that, that he was sued. If it is to be held, that all, that is meant by a man’s house being his castle, is, that he may defend it, if he can, but that, if he cannot, and is overcome, he is then left as defenceless as he would have been under other circumstances, then the notion about his house being a protection to him is all frittered away and is a mere shadow. The case of State v. Miller is also cited; but that is far from being authority for this case. The most that case settles is, that it will not do for a man to resist the sheriff, when about to take property, but that, if the sheriff takes property, that does not belong to the defendant, he . must answer in a suit for damage, where the question can be tried. The case of Ilsley v. Nichols, 12 Pick. 280, goes farther than it is necessary to go, in deciding this case. In that case it is held, that,. [673]*673when the officer breaks the outer door, to attach property of the debtor, and attaches the property, he is a trespasser, not only for breaking the house, but for taking the goods also. That is a well considered case, and is founded on such considerations, as would govern one like thé present.
We therefore consider that the charge of the county court was erroneous in this particular. The court had no occasion to give the jury any instruction in relation to the kind or degree of resistance, , that the respondent might make, while they held that he could not lawfully make any;'and of'course none was given; and perhaps that question could not well arise, as the case finds that he did not use so much resistance, as to effect his purpose, — as the officer succeeded in arresting him.
A new trial is granted, and the case is remanded to the county court.