State v. Beasom , 40 N.H. 367 ( 1860 )

Bellows, J.

The protestando is wholly unavailable in the present proceeding, and the fact protested against is admitted, just the same as if there had been no such protestation. The only purpose is to preserve the liberty of disputing the fact protested against in some other suit or proceeding, and such being the intent, it is held that even if the protestation be repugnant or inconsistent, it will merely be rejected as surplusage. 1 Oh. PI. 617; 3 Ch. PI. 1156 ; Com. Dig., PI. N., Protestation; 2 Saund. 103, note; 2 Ch. PI. 91. Beside, the demurrer, although informal, will be received as such, there being no demurrer to a demurrer. 1 Ch. PL 666.

The first count alleges that at a day and place named, the respondents, with force and arms, did wilfully obstruct Charles P. Danforth, sheriff, &c., duly appointed and qualified, and being then and there in the due and lawful execution of his office, in the service of a certain writ of replevin in a civil case — contra formam statuti. It is argued by the defendants’ counsel that the term, “ in the service of a certain writ of replevin,” is but a specification of the general statement immediately preceding, namely, that he was “in the due and lawful execution of his office of sheriff.” But to say nothing of the pause immediately after the word sheriff, we think this is not the true reading. On the contrary, the structure of the whole paragraph accords with the description of the offence in the act, and pursues the same order; stating the obstruction, the name of the officer, the office he holds; that he was duly qualified and authorized, and in the execution of his office, and then states in the service of what process he was obstructed. Instances are very numerous in pleading, both in civil and criminal cases, where the collocation'of the sentences will be influenced by the obvious purpose of the pleader. By regarding the terms, “ in the service of a certain writ of replevin in a civil case,” as setting forth in what act the officer was obstructed, the arrangement of the sentences, as well as the language in general, conforms to the statute, and there is nothing, we think, that calls for a different construction.

In Commonwealth v. Call, 21 Pick. 515, it was held by Morton, J., that the pronoun “their,” in the indictment, must be referred to that antecedent to which the tenor of the instrument and the principles of law require it should relate, “ whether exactly according to the rules of syntax or not.”

But a more important inquiry arises, and that is, whether the indictment shows with sufficient certainty that the process was legal; that being expressly made essential by the statute to constitute the offence. The general rule is, that indictments upon statutes must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it; 1 Ch. Cr. Law 232, 281; and the rule is recognized ifi State v. Gove, 34 N. H. 515, and State v. McKenzie, 42 Me. 592. The omission of any fact necessary to constitute the offence, will be fatal. Whar. Cr. Law 117. It must state the process to be legal, or so describe it that it shall appear to be so. Whar. Cr..Law 469; 2 Ch. Cr. Law 70.

In this case the words of the statute are descriptive of the offence, and the indictment should expressly charge the facts which constitute it, and nothing is to be taken by argument or inference. It is to be construed strictly, and should by positive averment show the offence committed. Whar. Cr. Law 132; State v. Abbott, 21 N. H. 439, 440, and cases cited. Upon these principles the first count must be held bad, unless the allegation that the sheriff was in the due and lawful execution of his office can be regarded as a substantial statement that the process was legal. Independent of the case of State v. Scammon, 22 N. H. 44, the weight of authority is against such a construction, and since that case the law must be regarded as settled in New-Hampshire. That was an indictment for obstructing a collector of taxes while in the execution of his warrant in another town. It was held, by Perley, J., that the facts must be stated in the indictment which confer the authority to act beyond the limits of his own town, and that the general allegation that he was in the due and lawful execution of his office, is not sufficient; and this, we think, is decisive here. Arch. Cr. Pl. 452; Rex v. Everett, 8 B. & Cr. 114; Rex v. Osmer, 5 East 304. Also, State v. Hailey, 2 Strob. 73; 9 U. S. Dig. 41, sec. 15; Cantrill v. The People, 3 Gilm. 356.

The second count is similar to the first, except it sets out the writ of replevin, stating that “ said writ of replevin is as follows, to wit.” It does not state, however, that the writ was duly issued out of the Court of Common Pleas, or that the bond required by law to be given by the plaintiff, “before the service thereof,” had been given; and we are inclined to hold that the process is not so described that the court can see that it was legal. In Baldwin v. Moulton, 4 Shep. 33, which was trover for goods taken by virtue of a writ of replevin, it was held that no valid bond having been given before service, the process afforded the officer no protection. So, in Smith v. McFall, 18 Wend. 521, it was held that in a justification by a sheriff, under a writ of replevin, it must be averred that a bond for the return of the property was delivered to the officer with the writ. See, also, Moses v. Van Voast, 19 Wend. 283. So, in Kendall v. Fitts, 22 N. H. 1, it is said by Eastman, J., that the bond is required by statute, and must be furnished before the writ is served, and this accords with the writ itself, which requires the sheriff' to replevy, &c., provided the plaintiff give bond. According, then, to the State v. Scammon, the indictment should show the facts necessary to authorize the officer to execute the writ, and the allegation that he was in the lawful execution of his office, is not sufficient. The want of an allegation that the writ was indorsed, may, perhaps, be distinguished from the case of the bond, inasmuch as on its face the writ is not to be executed until the bond is furnished; but on this point we give no opinion, as the case does not require it.

Upon these views we hold both counts to be defective. There must, therefore, be

Judgment for the respondents.