State v. Moore

| Conn. | Jun 15, 1872

PáRK, J.

The principal question in this case is whether it is an offence within the provisions of the 103d section of the act concerning crimes and punishments, (Revised Statutes, page 261,) for a person to hinder and obstruct an indifferent person, regularly deputed to serve a writ of attachment, while such person is engaged in the performance of his duty in serving such process. The language of the statute is, “Every person who shall hinder, obstruct, resist, or abuse any justice of the peace, or resist, hinder, obstruct, or abuse any sheriff, deputy sheriff, constable, or other officer, in the execution of his office, shall be punished, &c.” The question is, does the case of an indifferent person, lawfully deputed to serve process, and while engaged in so doing, oome -within the meaning of the term “ or other officer,” as used in this statute.

No good reason can be shown why this phrase was not intended to include all persons, except those specially named in the act, who are authorized by law to serve process. The statute authorizing writs to be directed to indifferent persons, was intended to reach cases of emergency, where a party finds himself in danger of losing his claim if he should be compelled to look up the regularly appointed officers of the law to serve his process. In such cases the statute was intended to meet the necessities of the case, and to supply an officer, who must be always at hand, to take the place of the regularly appointed' officers of the law, and to confer upon him all the authority quoad the process, that is conferred upon sheriffs and constables. The office of a deputed person therefore, to the extent of his deputation, cannot be distinguished in principle from that of the sheriff of the county. The difference consists in the extent of the jurisdiction rather than in the nature of the authority. The authority of the one is confined to a particular case, and he is therefore a special officer, while the authority of the other extends over all cases within the county that come to his charge; but this difference makes no difference in the nature of the authority. The sheriff can serve but one process at one time, and in the service of that process he is no more an officer than a deputed person would have been acting in his stead. While so doing the sheriff is in .the performance of a public duty under the sanction of the law; so likewise must the deputed person be to the same extent. Webster defines' an officer to be “a person commissioned or authorized to perform any public duty.” According to- this definition a person charged with the performance of one public duty, is as much an officer, while engaged in its performance, as another who is charged with the performance of many public duties; and especially if such duties are of the same class or character.

It would seem that these considerations are sufficient to show that a deputed person, while engaged in the performance of this appointed duty, is an officer of the law, and is one of those embraced within the phrase “ or other officer” in the statute in question. But other considerations could be adduced. It was urged with great force in the argument, that unless the statute in question has this construction, it is strange indeed that the legislature, in making provision for the service of this class of cases, where haste is necessary, should leave the deputed -person without protection, so that the fleeing debtor could resist and obstruct him in the performance of his duty, and accomplish the mischief by preventing the service of the process, that the statute was expressly intended to- prevent. Such a construction would practically defeat the object of the statute. But it is said that a (deputed person has none of the indicia of an officer; that he has no public appointment, no induction into office, that he gives no bond, takes no oath, &c. It is sufficient to say that these requirements would defeat the object of the statute. ' :

We are satisfied that a deputed person, while engaged in serving process, is an officer of the law, charged with the performance of a public duty, and that his case comes within the meaning of the term “or other officer” in the statute in question.

It is further claimed that the court improperly received the original writ as evidence in the cause, on the ground that, the facts attempted to be proved by it could only be proved by a copy of record. The authorities relied upon by the defendant, to sustain this claim are cases where the officer serving the process was sued as a trespasser for taking the property which he claimed to have attached. In such cases it was properly holden that the officer could not justify the taking of the property unless he completed the service of the writ by re-. turning the same to court with his doings indorsed thereon. The officer is commanded to return the writ, as well as to serve it on the defendant and his property, and if he obeys a part of the mandate and disregards the remainder, inasmuch as the whole command is one entire thing, the law will afford him no. protection unless he can show a legal excuse. Glover is not a party to this proceeding; and whether as between himself and the defendant in the writ which he served, he would be justified in not returning the process, is no part of the present inquiry. But even if it was, it might well be questioned whether the defendant, after settling the case in Glover’s presence, could afterwards make complaint that the process was not returned. This proceeding is between the state and the defendant. The crime laid t¡p the defendant’s charge was committed when he obstructed Glover in the performance of his duty. It was then complete, and was not dependent upon the question whether the process should afterward be returned to court. Suppose the defendant had destroyed the process when he obstructed the service of it; would he thereby have rendered himself secure ? We think not. The evidence was properly received.

Again, the defendant claims that the information is insufficient in the law. This question comes to ns on a motion in arrest of judgment. The information is not as precise and technical as it should have been, but without enlarging upon this subject, we think it is sufficient after verdict. The defendant has set forth many points in which it is claimed that the information is insufficient. He says that it is not alleged that Glover was an officer, nor that he was resisted in the execution of his office ; that it does not appear that the plaintiff in the writ, or his agent, took the oath required by law to be taken, before an indifferent person could be deputed to serve the same; that it does not appear that Glover’s name was inserted in the writ in the magistrate’s own hand; that it is not alleged that the writ which Glover was attempting to serve had any date; and that it does not appear that any bond for the prosecution of the cause had been given. It is alleged in the information “that Glover was lawfully deputed, according to the statute in such cases provided, as an indifferent person by Frederick Beardsley, Esq., a justice of the peace, &c., and as such indifferent person had in his hands a writ of attachment, issued by said justice, which was lawfully issued and perfected in all respects according to law, and which was directed to the said Glover, as an indifferent person, commanding him, &c., as by said writ and oath and deputation ready in court to be shown may appear.” We think these allegations in this stage of the case are sufficient to sustain the verdict.

There is no error in the judgment complained of, and a new trial is not advised.

In this opinion the other judges concurred.