If it was necessary to prevent the prosecutor from taking or carrying away from the presence of the defendant his personal property, he might strike in defence of the same, if the prosecutor was not then a lawful officer. To make the defendant criminal, the onus lay on the State, to show that the prosecutor was at the time a lawful officer and armed with a lawful execution. The defendant not (359) raising the objection at the time, in our opinion makes no difference. The prosecutor certainly was not a lawful officer. The county court of Gates had no general authority to appoint constables for the county. The county court, seven justices being present, may appoint a constable, if any of the contingencies happen which are mentioned in section 4, chapter 24, Revised Statutes. The record of the appointment of the prosecutor to be constable, does not show that any one of the said contingencies or events had occurred; and there was no parol evidence, if competent, tending to supply that deficiency in the record.
PER CURIAM. New trial.
Cited: S. v. Magness,
(360)