State v. Miller

12 Vt. 437 | Vt. | 1840

The opinion of the court was delivered by

Williams, Ch, J.

— It is to be taken, that the evidence offered, if admitted, would have proved the facts therein stated. It is also to be considered that, under the charge of the court, whatever facts were there adverted to as constituting no justification, were in evidence. From these it may be assumed, that Merritt, the deputy sheriff, had a writ of attachment, by which he was commanded to take the property of one Elisha Clark ; and by virtue of the attachment, and by direction of the creditor thereon, he did not attach the property of Clark, but did attach as his property, 150 stooks of corn then in the field of one Alien, which were, in fact, the property of one Williams, and in his possession, or in that of his agent, Allen, when attached; and that while the deputy sheriff was in the field where the corn was, and in such possession as he could take of property of that nature, i. e., it being in his sight or control,the respondent, acting as the servant of Williams, and' under his direction, removed it but without any assault or violence or any threats to the person of the deputy sheriff; and the question is, whether he was guilty of impeding and hindering the deputy sheriff so as to subject him to the punishment provided in the statute against that offence.

Upon this statement of facts, it is obvious that the deputy sheriff would have been liable to Williams in an action of trespass, if he had removed this corn, and, upon the same principle, if the case of the Earl of Bristol v. Wilsmore Page, 1 Barn. & Cres. 514, is to be recognized as an authority, he could not maintain an action against either Williams or the respondent, who took the property from him, as he was not entitled to it against the rightful owner. Still a public officer may not be forcibly or violently resisted, even by the actual owner, when he has attached or is about to attach property which he honestly believes to be the property of the debtor, especially if he acts in pursuance of the direction of the creditor. And for that reason, when an officer was so violently resisted, and an assault and battery committed on him in the resistance, the person,so resisting, was adjudged guilty under the statute, in the case of the State v. Downer et al., 8 Vt. R. 424, notwithstanding he might have had the better right to the property attached. We consider that such a forcible resistance would expose the offender to the penalty of the statute, and we think this a better principle than the one which was established in the case found in the 8th Pick. R. Commonwealth v. Kinnard et al. But some regard must be had to therights which the owner has to his property and they are not all to cease, when the sheriff comes with a process, not against him, but against a third person with whom he has no connection, and it is not always true that the same facts, which would render an entire stranger obnoxious to the penalty of the statute, would make the true owner an offender. A removal of property, about to be attached, by an entire stranger,to prevent such attachment,might be an offence, when such a removal by the real owner, for the same purpose, to prevent its being attached as the property of another, would not be an offence. The owner may make use of any peaceable means, to prevent such attachment, as it would, in fact, be a trespass on him. He may keep or regain the possession peaceably, and when it can be done without using any force or violence against the officer. Nor will this expose the officer to any hazard. The same proof which would protect the owner, would also protect the sheriff, if he should be sued for not keeping or attaching property which he could prove did not belong to the debtor, against whom he had process. The person, taking the property, must incur the hazard of being able to make satisfactory proof that he is the owner, as he would be guilty of an unjustifiable interference, and of impeding and hindering the officer, if it should eventually appear that he had no'legal claim, but was, in fact, an intruder and a stranger to any claim. As it may be considered the duty of an officer to attach property which he believes to be the debtor’s, or which he is directed to attach as such, he cannot be prevented from doing this by violence to his person, or threats of personal violence, even by the owner. When force is about to be used, the officer may insist on his official character, and the rights of even the owner must yield to the authority of the law. Thus much is required for the protection of the officer, and to insure a due regard to the law and his official character. Any thing further would be too great an infringement and invasion of the right which every one has to be secured and protected in the enjoyment of his property. In the case under consideration, if the facts, which are supposed, existed, the respondent could not have been guilty, if without offering violence or threats to the person of the sheriff, he, as the servant of the true owner and while the corn was in his possession, or, at least, in the joint possession of him and the officer, removed it to the place directed by the owner.

We think, therefore, the evidence offered should have been admitted, and if the corn was, in fact, the property of Williams, in the custody of his agent^ Allen, and in the field of Allen, and the respondent removed it by the direction of Williams, without any breach of the peace, and without committing any assault on the person of the officer, or any violence, or using any threats to prevent the deputy sheriff from doing his duty, he would not be guilty of the offence charged in the indictment. The case does not require us to decide whether any thing short of this would have been a justification. The verdict must be set aside, and a new trial granted.