State v. Hooker

An indictment, -which alleged, in the first count, that the respondent made an assault upon one Smith, the said Smith “then and there being sheriff of said county of Addison,” and which charged him, in the second count, 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 which alleged, in both counts, that the said Smith was, at the time, in the “execution of his said offiee,” 'was held to allege, with sufficient certainty, inboth counts, that said Smith was sheriff of Addison- county. And if it be alleged, in such indictment, that the sheriff, at the time of the said assault and impeding, had in his hands a writ of execution against the re- • spondent, which issued on civil process, and that he was aboutto execute the same by arresting thereon the body of the respondent, it is not necessary to allege that he had demanded of the respondent payment of the sum due on the execution. And where it was alleged in the indictment, in such- case, that the execution was dated the 27th of September, and that it was delivered to the sheriff, while it was in full life, on the 6th day of October, and that it was attempted to be served on the 7th day of November, and that it was made returnable in sixty days from its date, it was held that it sufficiently appeared that the execution was delivered to the sheriff within sixty days after its date, and that the sheriff attempted to execute it within its life. And. the allegation that the said Smith 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 respondent, and that the respondent then and there, well knowing that said Smith was sheriffof 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, was held as sufficiently averring that the sheriff had the execution in his hands at the time the resistance was made. And it is unnecessary to allege, in such indictment, the place, at which the execution was delivered to the sheriff. And, after a general verdict of guilty, it is no objection to the indictment, on motion in arrest, that offences of different grades, and requiring different punishments, are charged in the different counts. If any one or more of the counts are sufficient, the court will render judgment upon such counts; and if all the counts are sufficient, judgment will be rendered upon the count charging the highest offence. If a hearing be had before a magistrate, upon the complaint of a town grand juror charging a person with the commission of a crime, and the respondent be, by the magistrate, bound over for trial by the county court, and an indictment be found against him, and, before a trial is had upon the indictment, a witness, who testified before the magistrate, dies, evidence may be received, on trial upon the indictment, to prove what that witness testified before the magistrate. And it is not necessary, on such trial, to prove the exact language used by the witness in giving his testimony before the magistrate; it is sufficient, if the substance of his testimony, as there given, be detailed. If a sheriff, In attempting to execute a writ of execution, on civil process, which is delivered to him to be levied, break open the outer door of the dwelling house of the execution debtor, where the debtor then is, with a view of arresting the body of the debtor on the execution, such act is unlawful ; and if, after the sheriff has entered the house, the debtor forcibly resist the attempt of the sheriff"to arrest him, and commit an assault and battery upon the sheriff, an indictment will not lie against the debtor for so doing.

Indictment for an assault and battery upon a sheriff, and impeding him in the execution of the duties of his office. The indictment was in these words. “State of Vermont, Addison County, ss. Be it remembered, that, at a term of the county court, begun and holden at Middlebury, within and for said county of Addison, on the second Tuesday of June, A. D. 1843, The Grand Jurors within and for the body of the County of Addison, now here in court duly impanneled and sworn, upon their oath present, that William P. Hooker, of Middlebury aforesaid, at Middlebury aforesaid, on the seventh day of November, in the year of our Lord one thousand eight hundred and forty two, with force and arms, in and upon one Adnah Smith, in the peace of God and of this State then and there being, and then being sheriff of said county of Addison, and in the due execution of his said office, then and there did make an assault, and him, the said Adnah Smith, so being in the due execution of his said office, aforesaid, then and there did hinder and impede, and then and there did beat wound and ill-treat, and other wrongs to the said Adnah Smith then and there did, to the great damage of the said Adnah Smith and against the peace and the dignity of the State. And the Grand jurors aforesaid, on their oaths as aforesaid, do farther present, that the said William P. Hooker, at Middlebury aforesaid, on the seventh day of November, in the year of our Lord one thousand eight hundred and forty two, with force and arms, wilfully and knowingly did impede and hinder a civil officer, under the authority of this State, in the execution of his office, to wit, Ad-nah Smith, sheriff of the county of Addison aforesaid, in the peace of God and this State then and there being, in then and there serving and attempting to serve and execute a legal writ of execution, to wit, a pluries writ of execution, regularly issued on a judgment rendered by the Honorable County Court in and for said county of Addison, at a term of said court begun and holden at Middlebury, in and for said county of Addison, on the second Tuesday of June, A. D. 1842, said execution dated the 27th day of September, A. D. 1842, and signed by Samuel Swift, clerk of said court, and directed to any sheriff or constable in the State, and made returnable in sixty days from the date thereof, whereby, after reciting that Harry Goodrich of said Middlebury, by the consideration of the county court begun and holden at Middlebury, in and for said county of Addison, on the second Tuesday of June, A. D. 1842, recovered judgment against the said William P. Hooker and one Charles Hooker in an action of trespass, (the cause of which action it was adjudged by said court arose from the wilful and malicious act of the defendants,) in the sum of three hundred and forty one dollars and fifty six cents, damages, and for the sum of thirty two dollars and seventy cents, costs of suit, whereof execution remains to be done for the sum of $307.70, said officer, as often before commanded, is therefore, by virtue of said writ of execution, by the authority of the state of Vermont, commanded to cause to be levied, of the goods, chattels, or estate of the said William P. Hooker and Charles Hooker, said sum of $307.70, with 25 cents more for said writ of execution and 50 cents for two others, and, for want of the goods and chattels of said William P. and Charles, shewn or to be found by said officer within his precinct, commanding him to take the bodies of said William P. Hooker and Charles Hooker, and them commit to the keeper of the common jail in Middlebury, in said county, within said prison, which said writ of execution, so duly issued as aforesaid, in full life, and in no way satisfied, paid, or discharged, was, on the 6th day of October, A. D. 1842, delivered to said Adnah Smith, sheriff as aforesaid, to serve and return, and afterwards, to wit, on the seventh day of November, A. D. 1842, at Middlebury aforesaid, the said Adnah Smith, then being sheriff, as aforesaid, for want of the goods, chattels, or lands of the said William P. and Charles, shown him or to be found within his precinct, vyhereon to levy said writ of execution, attempted to serve and execute said writ of execution, as he was therein commanded, by arresting the body of said William P. Hooker; and the said William P. Hooker then and there, unlawfully and wickedly intending to impede and hinder the said Adnah Smith in the execution of his said office, and well knowing that said Adnah Smith was sheriff of the county of Addison as aforesaid, and that said Adnah Smith then and there had said writ of execution, so duly issued and in full force as aforesaid, to serve and execute, and was then and there attempting to serve and execute said writ of execution, did, with force and arms, then and there impede and hinder the said Adnah Smith, sheriff as aforesaid, in attempting to serve and execute said writ of execution, in the execution of his said office,, by beating and bruising the said Adnah Smith with a large and heavy bludgeon on his head, shoulders and arms, to the great damage of the said Adnah Smith, to the great hindrance and obstruction of justice, and contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State.” The indictment also contained a count for a common assault upon the said Smith, and also a count for an assault and battery committed upon one George W. Church. Plea, not guilty. On trial the counsel for the prosecution gave in evidence the record of the justice of the peace, who held the court of inquiry, and by whom the respondent was bound over for trial by the county court, and proved that Adnah Smith, the sheriff, was a witness, duly sworn, and that he testified before the magistrate, on said examination, and that he was also cross-examined by the respondent, and that he had since died ; and the said justice was called as a witness, to prove what was the testimony of said Smith before him, at said court of inquiry. The justice, upon inquiry, stated that he could not give the precise language of the witness, but only the substance of his testimony, as given upon the examination in chief and the cross-examination. The respondent objected to the examination of the justice, under such a state of facts, asto the testimony of Smith; but the court overruled the objection and admitted the testimony. It appeared, from the testimony, that on the 7th day of November, 1S42, Adnah Smith, then being sheriff of Addison county, had id his hands, as sheriff, the writ of execution described in the indictment, to serve and return according to law, and that, on the evening of the same day, he went, with some assistants, among whom was George W. Church, to the dwelling house of the respondent, for the purpose of making service of the writ of execution upon the respondent by arresting his body; that, upon their arrival at the house, they found the outer door fastened, and the respondent and his family within, and, after some short delay, and some conversation with the respondent’s wife, the sheriff, not succeeding in inducing her to open the door for him, burst open the door by bending or wrenching off the latch, with which it was fastened, and thereupon went into the house, with his assistants, against the will of the respondent, with the intent and for the purpose of arresting the respondent upon said execution; that, soon after the sheriff had thus entered the house, and after some little conversation with the wife of the respondent, the sheriff became satisfied that the respondent was in the chamber, and he thereupon opened the chamber door and informed the respondent that he had an execution against him and wished him to come down and surrender himself upon it, and this he repeated several times, but received no reply; that, soon after this, Smith attempted to ascend the chamber stairs, in order to arrest the respondent, and, while ascending, the respondent struck him violently with a large club upon his head, so as to make him fall back to the foot of the stairs; that, soon after, at the request of Smith, George W. Church attempted to ascend the stairs in pursuit of the respondent, and he also received a violent blow upon the head from the respondent, and was, by its force, driven back ; that thereupon Smith and Church attempted to ascend the stairs together, in order to arrest the respondent, and the respondent again struck Smith with a club, but they succeeded in ascending the stairs and arresting the respondent; and that, after the respondent had been once taken, he made no farther resistance, and was committed to jail upon the execution. The court charged the jury, that, though the sheriff had no right to break open the outer door of the respondent’s dwelling house, in order to arrest him on the execution, and though the sheriff thereby made himself liable to an action of trespass on the freehold, yet that, being once within the house, if he proceeed after this to arrest the body of the respondent on the execution, and the respondent with force resisted him, while in the execution of his office, and while attempting to arest him on the execution, they would find the respondent guilty. The jury were also told, that they must take the law of the case from the court, and follow their instructions, in that particular, as their rule. The jury returned a general verdict of guilty. After verdict the respondent filed a motion in arrest of judgment, which was overruled by the court. Exceptions by respondent. The exceptions were allowed, the sentence respited, and the cause passed to the Supreme Court. I. The court erred in admitting the testimony of the justice, by whom the court of examination was held, as to what the deceased witness testified at said court;— 1. Because he could not give the language of the witness; 1 Stark. Ev. 261-2, 280; 2 Russ, on Crimes 683; 1 Phil. Ev. 200, 274 ; 4 T. R. 290 ; 3 C. & P. 387; Melvin v. Whiting, 7 Pick. 81. 2. Because it was not given on a trial between the same parties, but upon a mere hearing to determine whether the respondent should be held for trial. 1 Chit. Cr. Law 81-2, n. e. II. The court erred in their charge in relation to the validity of the arrest, made by the officer after a breach of the outer door of the respondent’s dwelling house, for the purpose of making the arrest. The principal authorities, which have any tendency to support the doctrine contained in the charge, are believed to be the following; 18 Edw. IY, 4; Somayne’s Case, 5 Co, 93; Bac. Abr,, Sheriff, N 3; Lee v. Gansel, Cowp. 1; Dalt. Sheriff 353; 1 Back. Sheriff 129; Hemenway v. Saxton, 3 Mass. 222; Widgery v. Haskell, 5 Mass. 155; State v. Miller, 12 Vt. 437. From an examination of these authorities, it appears that nearly all of them relate to the execution of goods, 'and not to the arrest of the body, and are grounded upon the authority of a case in the Year Book, 18 Edw. VI, 4, and a reference to that authority in 5 Co. 93. It would seem, however, that the case in the Year Book is not author-, ity, to sustain even the doctrine, that an execution of a ji. fa., after a breach of the outer door of a dwelling house, is good. Yelv. 29, Metcalfs, Ed. note 1; People v. Hubbard, 24 Wend. 369 ; Curtis v. Hubbard, 4 Hill 487; 12 Pick. 270. In Bao. Ab., above cited, it is, indeed, said in the text, that the execution of a capias, or jd, fa., would be good; but in the note this is doubted, and the “ modern practice,” it is said, “ in some cases, is, to discharge such execution on complaint by affidavit, and to grant an attachment against the officer; ” and the case of Yeates v. Delamaque, in Trinity term, 17 Geo. Ill, in the court of exchequer, is cited in support of the doctrine of the note. The case in Cowper, although an application to discharge the defendant'from prison, on the ground of an illegal arrest, made after breaking into the apartment where he lodged, turned entirely on the ground that the door broken was not an outer door. The case in Dalton’s Sheriff is the same as 18 Edw. IV. 4. In Backus’ Sheriff the authority cited is 5 Co. 93, which contains a mere reference to 18 Edw. IV, 4. The cases in the 3d & 5th Mass, were attachments of goods. The case in the 12 Vt. merely decides, that the owner of personal property may not resist, by personal violence; an-officer, who attempts to attach such property as the property of another. These authorities seem, therefore, to fail entirely of sustaining the doctrine, that the execution of a fi. fa., made after breaking into the debtor’s dwelling house, is good. But, whatever may be the law on that point, we contend that an arrest, made under the circumstances of this case, is void,' and that the party arrested is justified in resisting the officer in making it. The old maxim of the law is, that “ every man’s dwelling house is his castle,” and that the outer doors thereof cannot be broken, for the purpose of executing civil process. It makes the dwelling house of every individual in community a “privileged place,” and the place affords protection to the occupant and his family. It is not, therefore, simply the breaking the outer door, or window, which is prohibited, but it is the invasion of the man’s sanctuary. The .following authorities are cited in support of the rule, for which we contend. 1 Chit. Cr. Law 54-5: Yelv. 29, note 1, above cited ; Cowp. 1 ; 2Back. Sheriff 460, addenda; Bao. Ab., above cited; 11 Pick. 379; llsley v. Nichols, 12 Pick. 270; 24 Wend. 369; 4 Hill 337; 1 Russ, on Crimes 520; Smith’s Leading Cases 109, Semayne’s Case 5 Co. 93, and notes; 8 Vt. 424; Chipman v. Bates, 15 Vt. 51; Rev. St. 74, 17, 18. The decisions in analogous cases are entirely inconsistent with the doctrine of the charge. The law can only secure the subjects of it from abuse, by making every thing accomplished by its abuse void, and leaving the party abusing it in the same situation; as if he had no authority, and was acting as a private individual. Bagshaw v. G'award, Yelv. 96, & cases there cited ; Bac. Ab., Trespass B, and Sheriff N, 3; Ex parte Wilson, 1 Atk. 152; Loveridge v. Plaistow, 2 H. BI. 29; Luttin v. Benin, 11 Mod. 51; Birch v Prodger, 4 B. & P. 135; Atkinson v. Jameson, 5 T. R. 25 ; Wells v. Gurney, 8 B. & C. 769; Yelv. 29, & cases cited in note; 13 Johns. 414; 8 T. R. 187; 4 Pick. 249; 10 Johns. 253, 369; Smith’s Leading Cases 120. III. The motion in arrest of judgment should prevail. First, Because the first and second counts are insufficient, as counts for impeding an officer; 8 Vt. 424; 3 Vt. 110; 1 Chit. Cr. Law 223. They are good only for an assault at common law; 8 Vt. 424. . Second, Because the second count is bad, as a count for impeding an officer. ]. It is not alleged directly that Adnah Smith was sheriff .of Addison county. 1 Chit. Cr. Law 171-2, 199. 2. It is not alleged that the sheriff had demanded the sum required by the execution to be levied of the respondent, or that the respondent had refused to pay said sum on such demand, or expose personal property sufficient to satisfy it. 3. It is not alleged, that, at the time of the resistance by the respondent, the sheriff was in the execution of his office, or was executing his process. 2 Hale’s P. C. 354, § 110 ; 1 Chit. Cr. Law 281-2. ' 4. It is not alleged, that the execution was delivered to the officer within sixty days after the date thereof. 5. It is not alleged that the sheriff attempted to execute the said execution within the life of the same. 6. It is not alleged, that, at the time of the resistance on the 7th of November, 1842, the sheriff had the execution in his hands. 7. It is not alleged that the execution was delivered to the officer at any place. State v Bacon, 7 Vt. 219; 2 Hale’s P. C. 344, §77; 1 Chit. Cr. Law 196-8. None of these defects are cured by verdict. 1 Chit. Cr. Law 661; 2 Hale’s P. C. 355. Third, The judgment must be arrested generally; — because, the verdict being general, and the offences described in the different counts being of different grades and requiring different punishments, no judgment can be rendered on the verdict. 3 T. R. 103; 1 Chit. Cr. Law 254, 637-8, 641.* The two first counts in the indictment are sufficient. The first is substantially acqording to well established forms for an indictment at common law for an assault and impeding an officer in the execution of his duty ; and the second count fully and sufficiently charges the statute offence. 8 Vt. 424, and cases there cited. The indictment is not deficient by reason of misjoinder of offences. The several counts simply set forth the same transaction in different ways, which is no ground of demurrer, or motion in arrest. 1 Chit Cr. Law 249, 250. The evidence of what the -deceased witness, Adnah Smith, testified at the court of examination,was properly admitted. -Greenl. on Ev. }95, 196. 12 Vt. 437. The fact that the officer was guilty of a trespass, in opening the outer door of the respondent’s house against his will, affords no justification for the assault and impeding the officer, when he subsequently attempted to arrest the respondent on the execution against him. Semayne’s Case, 5 Co. 93; 1 Chit. Cr. Law 56; 1 East’s P. C. 323; 12 Vt. 437.