Bowers v. People ( 1856 )

Skinner, J.

This was an indictment against Bowers for resisting an officer. The indictment charges that Bowers, on the twenty-first day of December, 1855, at Cook county, Illinois, in and upon one Michael Hickey, the said Michael Hickey then and there being a public officer, to wit, a constable, and being then and there in the due execution of his duty as constable, and being then and there attempting to serve a lawful process, did then and there unlawfully, knowingly and willfully resist, obstruct and oppose, and him, the said Hickey, acting as such officer, beat, wound, ill-treat, and so forth.

The defendant below contends that the indictment is insufficient for want of an averment that Hickey was an officer of Cook county, and because it does not set forth. or describe the process which he was attempting to execute when resisted. To constitute the offence of resisting an officer, the officer or person resisted must be authorized to execute the process, in the execution of which he is resisted, the process must be a legal process, and this, to justify a conviction, must be alleged in the indictment, and proved on the trial. The offence consists in resisting or opposing the officer while acting in his official capacity. The writ or process which he is attempting to execute when resisted must have emanated from a court, or person having jurisdiction and authority to issue it; and the officer, must, at the time and place, be authorized in law to serve or execute the same. The averment that Hickey was in the “ due execution of his duty as such constable,” and “ attempting to serve a lawful process ” at the time and place resisted, includes the validity of the ¡irocess ; and the averment that he was “then and there a public officer, to‘wit, a constable,” and “ then and there in the due execution of his duty as such constable,” is an averment of his official capacity and jurisdiction to serve the process. A general averment that the process was a lawful process, and the person resisted, a public officer, authorized to execute the same, in the execution of which he was resisted or opposed, is sufficient allegation, both of the validity of the process, and the jurisdiction of the officer. To prove the accused guilty, the process must appear, on its face, to be a lawful process, which might be lawfully executed at the time and place; and it must appear that the officer resisted was authorized to execute it, and that the accused obstructed, resisted or opposed, the officer in executing, or attempting to execute the same. McQuoid v. The People, 3 Gil. 76. The indictment being sufficient, the court below properly overruled the motion in arrest of judgment. The court sentenced the defendant to pay a fine of one hundred dollars, and to imprisonment in the Bridewell of the city of Chicago for six months. The defendant questions the legality of the sentence as to imprisonment in the Bridewell. This question has been settled by this court. Private Laws of 1851, 146, Sec. 50; Laws 1853, 147; Perry et al. v. The People, 14 Ill. 496.

Judgment affirmed.