United States v. Phelps

27 F. Cas. 526, 4 Day 469

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: April 15, 1810
• Status: Published

Opinion

The Court

said the indictment must be strictly proved.

The Attorney then observed, that the surveyor had a right by law to appoint assistants in the execution of his office, and that it was penal to resist such an officer thus appointed; and contended that Cheeseborough was an officer of this description, and that the warrant of the surveyor was admissible to prove his appointment in this point of view.

The Court acquiesced in the position, that the surveyor might nominate assistants, and that it would be penal to resist them in the execution of their office; but if a man is prosecuted for such an offence, the indictment must describe the assistants in their real character and Capacity. Here Phelfis is prosecuted for resisting an in-sfiector of customs, an officer known and described in the law. It does not appear that Cheeseborough was appointed to that office; and although he might have held another office, and how penal soever it might be to resist him, it is clear that this indictment cannot be supported. If Phelfis be guilty of any crime, it is that of resisting an assistant of a surveyor; but he is charged with a different crime.

No other evidence being offered,

The Court directed the jury to find the prisoner not guilty; which, they did without retiring from their seats.