State v. Copp

Gilchrist, J.

The first exception taken by the prisoner’s counsel is, that the order of the court should have been proved by the record and not by parol. In support of this position we have been referred to ch. 175, § 15, of the Revised Statutes, which provides that “ every justice shall' keep a fair record, in one or more books to be kept for that purpose, of all proceedings, civil or criminal, before him.” But the order of the justice that the prisoner should remove from his position, was merely interlocutory, and cannot be considered as a “ proceeding,” civil or criminal, before him. The section was intended to provide for a regular entry of actions and complaints, and of the judgments thereon. It does not mean that none of the various orders made in the course of a trial shall be valid, and incapable of being proved, unless they are matters of record. Such a construction of his duty would be onerous to the justice, and is not called for by the ordinary necessities of practice. We think the exception should be overruled.

It is also contended that the justice had no authority to make the order in question.

The power of keeping order, and of requiring a decorous and proper demeanor in a court room during the progress of a trial, lies at the very foundation of the administration of justice. Without it there can be no law and no justice, for if the law will not authorize the means necessary to ensure its observance

*215 and proper administration, it must remain a dead letter. But tlio law never intended that the prisoner should have the power of stationing himself in any position he might desire during the trial. If it rested with Mm to select the location he might find most convenient, he might see fit to place himself upon the bench, or in the jury box. He was present at this trial, neither as a party nor as a witness. He went there to gratify his curiosity, and it behoved him so to conduct as not to disturb the proceedings of those who had duties to perform. These duties cannot be discharged unless the justice possesses the power upon an emergency to direct the removal of any individual whose presence he may think prejudicial to the interests of justice. The law does not, indeed, authorize any court to act arbitrarily, and unreasonably exclude persons, but the right to have the courts open is the right of the public and not of the individual. If every person for whom there is sufficient space, has a right to be in court, ho has a right to be in any part of it where there is sufficient space, and the inconvenience resulting from the exercise of such a right is a strong argument against its existence. It will be in many cases impossible that a proceeding should be conducted with due order and solemnity, and with the effect that justice demands, if the presiding magistrate, by whatever name he may be called, lias not the control of the proceeding, and the power of admission or exclusion, according to his own discretion. It is bettor that this discretion should be exercised by a person acting under the responsibility of an official oath, than that it should be loft to a crowd of lounging bystanders to enter and depart as their humors might dictate; and far better than that a court of justice should be desecrated by sucb lawless conduct as was exhibited by the prisoner, Garnett vs. Ferrand, 6 B. & C. 611. We think this objection should he overruled.

The third exception is that the order should have been sot out in the indictment. But it is sufficient to allege that the prisoner resisted the officer in discharge of his duty. It has never been held that the specific acts of resistance should he stated. They are not stated in the precedents, 2 Ch. Cr. Law 69, (Am. Ed. 1819.) The order, therefore, need not be recited, as the only *216 object in reciting it would be to show the particular acts of resistance, and we think this exception cannot be sustained.

There'is another exception, which is, that there is no competent evidence that Rowell was a deputy sheriff, as alleged in the indictment.

The indictment charges an assault upon John A. Rowell, “ then and there being one of the deputy sheriffs in and for the county of Hillsborough aforesaid, legally appointed and duly qualified to discharge the duties of said office.” The assault is upon a sheriff “ legally appointed and duly qualified.” It would undoubtedly have been sufficient if these words had been omitted. In 3 Ch. Cr. Law 832, (596,) there is a precedent of an indictment for assaulting a constable in the execution of his office, and he is described as “ then being one of the constables of, &c. and in the due execution of his said office, then and there also being.” This is a sufficient allegation that he was a constable, and it would be proved by evidence that he acted as such; and Rowell’s testimony that on that day he was a deputy sheriff, and acted as an officer of the court, would be sufficient. Rut in the present case, the evidence falls short of the proof required, as the allegation is a descriptive averment, and must be literally proved. It is a most general rule that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected. 3 St. on JEv. 1539. Upon the same principle, no allegation can be proved partially in respect of extent or magnitude, where the precise extent or magnitude is in its nature descriptive of the charge or claim. 3 St. on Ev. 1539. The position that descriptive averments cannot be rejected, extends to all allegations which operate by way of description or limitation of that which is material. An averment is never considered immaterial when it constitutes the identity of that which is material. 3 St. on Ev. 1542. If an allegation limit and confine that which is material, the latter can never be available to any greater extent, for such an averment is always descriptive. 3 St. on Ev. 1550. Where the name of a third person is introduced into an indictment as descriptive of some person or thing, that name must be proved as laid. Dur *217 ore’s Case, 1 Leach 390. Where a person or thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same as that described in the indictment. Roscoe’s Cr. Ev. 93, 94. In cases where, from the precise and special nature of the allegation, the due appointment of the party to an office or situation must be proved, then, according to the general rule, it must bo proved by the best evidence the nature of the case will admit of, that is, by the production and proof of the original appointment, whore it is in writing. 2 St. on Ev. 374. In the case of Ilex vs. Arnold, Strange 103, there was an indictment against the defendants, and for that they, being church-wardens, and two others overseers, debito modo appunctuai, did refuse to join with the overseers in making a poor rate. — Held, that the prosecutor must show an appointment under the hands and seals of two justices, and parol evidence was rejected. A common informer, who, in his declaration in debt against a sheriff’s officer, alleged a judgment and a scire facias on that judgment, is bound to prove the judgment as well as the writ, although it was unnecessary to allege the judgment at all. Savage vs. Smith, 2 Bl. R. 1101; Bristow vs. Wright, Doug. 666. Where an allegation contains matter of description, if the proof given be different from the statement, the variance will be fatal. Abbott, C. J., Ricketts vs. Salwey, 2 B. & Ald. 364; Bromfield vs. Jones, 4 B. & C. 380 ; Stoddart vs. Palmer, 8 B. & C. 2; Smith vs. Taylor, 1 B. & P. (N. R.) 197. And where a plaintiff sets out his title more particularly than is necessary, it must be proved as laid. Bernasconi vs. Duke of Argyle, 3 C. & P. 29. An indictment for stopping the mail, which (unnecessarily) alleged' a contract between the postmaster general and the mail carrier, was held not to be supported without proof of such contract. United States vs. Porter, 3 Bay 283 . An immaterial averment is a statement of unnecessary particulars in connection with, and as descriptive of, what is material. It does not require proof unless the failure of such proof would occasion a variance between the' pleading and the evidence. Gould on Pl. 163, 164.

*218 We have referred to the authorities with some minuteness, for the purpose of showing their uniformity upon this subject of descriptive averments. If a party is to recover secundum allegata et probata, and that is the only safe rule, the court cannot disregard a variance in matters of description. The general rule, however, is modified, and its application sometimes limited by another rule, which is, that if an averment may be entirely omitted Without affecting the charge against the prisoner, and without detriment to the indictment, it will be considered as surplusage, and may be disregarded in evidence. Phill. Ev. 854, 8th Ed.

In the present 'case, the assault is alleged to have been committed upon a deputy sheriff “ legally appointed and duly qualified.” These words are as clearly descriptive as any that could have been selected. The whole averment of an assault upon a deputy sheriff cannot be omitted without affecting the charge against the prisoner; and as it was not proved, the exception' must be sustained.

Verdict set aside.