People v. Cooper

13 Wend. 379 | N.Y. Sup. Ct. | 1835

By the court,

Sutherland, J.

The court decided correctly in admitting the attachment in evidence, without proof of the preliminary proceedings necessary to render it regular. The magistrate by whom it was issued had general jurisdiction to issue attachments, and the process was regular and unexceptionable upon its face. The officer was not bound to inquire whether the requisite evidence had been exhibited to the justice to authorize the issuing of the attachment, in this particular case. It was decided in Savacool v. Boughton, 5 Wendell, 170, that if the subject matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears on the face of the process, [f the property .seized in this case had belonged to the defendant in the attachment, he could not have maintained trespass against ffie officer, even conceding that the bond and affidavit, upon which it was issued, were not such as the statute required; the process itself would have afforded him complete protection. He could not have been called upon to show the regularity of the preliminary proceedings; and that principle appears to me to be applicable to this case, so far as to render the attachment itself competent evidence.

Resisting an officer in the execution of process is no distinct statute offence. It is stated in the indictment merely by way of aggravation, and the evidence in relation to it was as applicable to the two first counts as to the third ; and if the third count were defective in its averments, which I do not think it is, still the other counts being good, and the evidence applicable to them, it would be no ground for reversing-the judgment.

The jury having found that the trunk was in the actual manual possession of Hull when the defendant attempted to recover it, and made the| assault upon him. A party may regain the possession of his property by force, without subjecting himself to a private action of trespass fordamages; but if he is guilty of a breach of the peace, he is answerable criminally. Hyatt v. Wood, 4 Johns. R. 158, per Spencer, J. This is the principle which the court intended to lay down in their charge in this case, and it was that undoubtedly upon which the defendant was convicted. He was not censurable for attempting to recover the possession of his property; but he had no right to break the peace, and commit an assault and battery upon the officer in order to effect it, although the circumstances of the case certainly afford an apology for considerable excitement upon his part. The court very properly considered it a mere® technical offence, and imposed only a nominal fine. I think the judgment ought to be affirmed.