State v. Freeman

8 Iowa 428 | Iowa | 1859

Stockton, J.

First. As to the demurrer to the indictment, it was not necessary, in charging the defendant with knowingly and wilfully resisting an officer, authorized by law, in attempting to execute a legal writ, to aver that the officer, at the time, informed the defendant that he acted under the authority of a warrant. In making an arrest, the officer must inform the defendant, that he acts under the authority of a warrant, and if required, must produce and show it. Code, section 2839. But it is not necessary that the indictment, should set forth, at length, the acts of the officer, or show that in making the arrest, he complied, in all respects, with the requisites of the statute. In serving the writ, he will be presumed to have discharged his duty; and if the defendant relies on the fact that he omitted to declare the authority under which he acted, it was proper matter of defense.

It is urged by defendant, in the second place, that the indictment nowhere charges that the defendant resisted the officer at the time of the’alleged attempt by him to execute the warrant; and that in this respect it is uncertain and repugnant. The time of the commission of the offense, was immaterial, and need not have been proved as laid. Being alleged under a. videlicit, it was nugatory, and not traversable; and if repugnant to the premises, did not vitiate the indictment, but the videlicit itself may be reject-eel as surplusage. It would be otherwise, if the precise time were the very point and gist of the cause. In such case, the time alleged by the videlicit, is conclusive and traversable, and shall be intended to be the true time, and no other; and if impossible, or repugnant to the premises, it will vitiate the'indictment. Starkie’s Crim. Pleading, 277-8.

It was immaterial in this case, whether the offense was committed on the 12th of May, or the 12th of October. It may frequently happen that an averment is faulty, because inconsistent with the fact, or repugnant to the other parts of the indictment, or is in itself insensible or absurd, without such fault being fatal. "Where the defective averment may, without detriment to the indictment, be wholly omitted, it may be considered as surplusage, and disregarded. It is only an inconsistency in the material allegations, that will vitiate an indictment.

The writ, by virtue of which the officer was attempting to arrest the defendant, is set forth in the indictment. The defendant objects that it is a simple writ, issued- by the county judge, and not a “judicial warrant of arrest,” as alleged. 'Whether the writ sufficiently answered the description given of it, is not so material, as the question, whether it was a legal writ, as required by the statute. Being satisfied that it is so, we think the objection of the defendant is not wrell taken. The demurrer was properly overruled.

"We think there was no valid objections to the warrant of arrest being given in evidence to the jury. The fact that' it was dated on the 12th, and made returnable on the 13th of May, was not such an objection as to render the writ illegal and void. The form given in the statute, (section 2827), is to be pursued substantially; but we cannot say, that the magistrate may not, for reasons appearing to him sufficent, direct that the person arrested be brought before him for examination on the day succeeding the date of the-writ.

No sufficient reason is shown for the interference by this court, with the discretion of the district court, in overruling the motion for a new trial. The charge of the court to the jury was not excepted to, and seems to us quite as favorable to the prisoner as he had any right to demand. The verdict, we think, was authorized by the evidence.

Judgment affirmed.