State v. Flagg , 50 N.H. 321 ( 1870 )

Sargent, J.

Chapter 259, sec. 5, Gen. Stats., provides that “if any person shall wilfully assault or obstruct any officer or other person duly .authorized, in the service of any lawful process or order in any civil case, or in any criminal case, the punishment of which is imprisonment in the common jail and fine, or either, * * * * he shall be imprisoned,” &c.

This indictment is for assaulting and beating one William P. Lang, .a constable of Tilton, in Belknap county; while engaged in the service of a warrant against said defendant in a criminal case (describing it), and for unlawfully and knowingly obstructing, opposing, and hindering said officer, in the due and lawful execution of his office, in the service of said warrant.

In this indictment it is nowhere alleged that the warrant which the officer was serving, when resisted and assaulted, was lawful process, according to the express provisions on which the statute was founded, nor is the complaint and warrant set forth in the indictment so that the court can see that the process was lawful or legal. This point is directly raised and decided in State v. Beasom, 40 N. H. 367, where it is held that an indictment like this for obstructing an officer in the service of legal process must expressly allege such process to be “ lawful process,” or so describe it that it shall appear to be so, and that an allegation that the sheriff was “ in the due and lawful execution of his office,” is not sufficient. That case is entirely decisive of the present. See, also, State v. Scammon, 22 N. H. 46; State v. Barrett, 42 N. H. 470; State v. Fitts, 44 N. H. 623.

We do not, therefore, need to examine the several other points discussed in the brief for the respondent, as the indictment is not only wanting in form, but is void for lack of substance.

The forms in Bell’s Justice and Sheriff 357 (3d ed.), which seem to have been followed in this case, are fatally defective in this particular. Demurrer sustained.