Commonwealth v. Kane , 108 Mass. 423 ( 1871 )

GBAT, J.

The foundation of the rule of evidence, that a pen son acting as a public officer has been duly appointed to the office which he assumes to exercise, is that all acts done by what appears to be public authority are presumed to be rightly done, until the contrary is proved. Omnia presumuntur rite esse acta, donee probetur in contrarium. Bank of United States v. Dandridge, 12 Wheat. 64, 70. And it is well settled that the rule applies to prosecutions for injuries to a public officer in resisting him in the discharge of his duty.

In the leading case of the Gordons in 1789, all the judges of England were of opinion that, on the trial of an indictment for the murder of a constable in the execution of his office, while attempting to arrest the defendant, evidence that at the time he had his constable’s staff with him and gave notice of his business, and that he was generally known as the constable of the parish, was sufficient. 1 Leach (4th ed.) 515 ; S. C. 1 East P. C. 315 , 4 T. R. 366 note. In a suit by the United States for a penalty for rescuing goods seized by a collector of customs, Chief Justice Marshall held that evidence that he had notoriously acted as collector was sufficient. Jacob v. United States, 1 Brock. 520. And in a criminal prosecution of the owner of cattle for an assault and battery in taking them from a person who had found them at large without a keeper, and was driving them along the highway, this court decided that his testimony that he was a field-driver of the town, and acted as such in taking the cattle and for many years before, was sufficient primd facie evidence of his authority. Commonwealth v. McCue, 16 Gray, 226. See also Berryman v. Wise, 4 T. R. 366 ; Rex v. Verelst, 3 Camp. 432; United States v. Bachelder, 2 Gallison, 15 ; Sawyer v. Steele, 3 Wash. C. C. 464 ; People v. Hopson, 1 Denio, 574.

The evidence offered at the trial was therefore competent and sufficient to prove that the person assaulted by the defendant was a public officer. The point, taken at the argument, upon the authority of Commonwealth v. Doherty, 103 Mass. 443, that he might have been a police officer without authority to make arrests, does not appear to have been made at the trial, and cannot now be raised for the first time. Commonwealth v. Stahl, 7 Allen, 303. Commonwealth v. Heffron, 102 Mass. 148.

Exceptions overruled.