State v. Burt

25 Vt. 373 | Vt. | 1853

The opinion of the court was delivered by

Redfield, Cn. J.

This indictment is clearly insufficient, for the offence of impeding the officer, under the statute, as was held in State v. Downer et al., 8 Vt. 424.

But it seems to us, that it is sufficient for a common assault, as at common law, or under the general statute, upon the matter of breach of the peace. The count in this indictment differs in but two particulars, in its legal effect, so far as I have noticed, from the first count in the indictment, in the case of State v. Downer et al., which was held good. 1. It does not allege a battery, and that did. 2. This count concludes against the statute, and that did not. But neither of these particulars affect the legal foi’ce of the count. If the count would be good, with the addition of the battery, it is equally good for the assault now. And the conclusion .against the statute is of no importance, unless the count is claimed as good under the statute. It may be regarded as surplusage, or the conclusion against the statute may be regarded as applicable to the proper statute.

The allegations, in regard to the character of the person assaulted, are not necessary to be proved, being mere description of the person; and the impeding and hindering the person, are mere consequences of the assault. No other offence is alleged, and the assault is alleged; so that there is no defect, and no duplicity.

This case is no doubt yexy similar to that of the State v. Rowell, in this county, in 1843; but that case contains more of the description of the statute offence, and from the bill of exceptions in that case, it did not appear that any assault was committed, I think. It therefore became necessary to open the case. And at the moment, the majority of the court, inclined to arrest the judgment, upon farther examination and reflection, the decision was regarded as too doubtful to merit or justify a report, and as to the sufficiency of the count, was no doubt unsound.

Judgment, that the indictment is sufficient, and that the respondents severally pay a fine of $-, and he jointly holdeu for the costs.