State v. Smith

Woodbury, J.

delivered the opinion of the court.

There is some contradiction in the ancient authorities as to the point, whether a sheriff can break the doors of a dwelling-house, to serve a process for a breach of the peace (1.) But the principle seems never to have been doubted, that where a publiek offence has been actually committed, any proceeding in the name of the publiek for its punishment shall not be delayed by the privilege that every man’s house is his castle (2.)

*347 Some of the cases, supposed to be exceptions, are those where no crime had then been perpetrated ; and the doctrine is occasionally laid down as to felonies alone, without particularizing breaches of the peace.

But it is well explained by East (3) that “ this privilege ' , , , . V r ° extends no further than as against arrests upon process in “civil suits. For when a felony has been committed, or “ dangerous wound given, or even where a minister of justice “ comes armed with process founded on a breach of the “ peace, the party’s own house is no sanctuary for him; but “the doors may be forced, after the notification, demand and “refusal, after mentioned.”

In respect to the other point: As civil process can be executed in the night as well as the day, no ground exists for a more rigorous rule of construction in relation to criminal process ; and in 1 East C. L. 324, ch. 5, sec. 88, it is well observed, that such process may be executed “ at night as “ well as by day; and therefore killing the bailiff or other “ officer, on pretence of his coming at an unseasonable hour, “ would be murder.”

The motion cannot prevail.

) Bulsh. 146, Foster, 8 ch. 26 sec. -12 Co. 131.

) 5 Co. 92, Semayn's case.-2 Hawk. b. 2 ch. 14.-Bac. Sh. n. 2, & Extu. M.

1 East C. L. 324, ch. 5, sec. 88.