State v. McOmber

The opinion of the court was delivered by Mattocks, J. — We are not prepared to say that the decision of the county court was erroneous upon the question raise# before them. But as the verdict cannot stand on account of defect that is apparent upon the record,- we have -not so carefully examined the first question as we otherwise should have done. The indictment contains two counts — the first for impeding authority, and the second for an assault — and there having been a general verdict of guilty, the respondent was convicted on both counts; and if the law will not warrant a conviction on- both, there must be a new trial. The fifth section of the act against inferior crimes declares, “ That if any person or persons shall hinder or impede any officer, judicial or executive, civil or military, under the authority of this state, in the execution of his office, such persons on conviction shall pay a fine not exceeding five hundred dollars each.” This act being highly penal, is to be construed strictly, and no person is to be' made' subject to its penalty by implication or intendment. It was evidently made to ensure respect and obedience to all the constituted authorities of the state, who have duties to perform in administering and executing the law. The eleventh section of the justice act authorizes the justice in certain cases to depu [218] tize any suitable person to serve a writ: “ and the person so authorized shall have all the power of the sheriff, to whom such writ shall be directed, in the service of such writ.” Does this make such person the sheriff or any other officer ? and if any other officer, by what name or style can he be called ? Certainly it does not in terms any more than the twenty-fifth section of the same act, which says, “ That when no proper officer shall attend a justice court, such justice shall have power to appoint some proper person to fill the place of such officer.” And in neither section is there any enactment against resisting them. ■ The meaning of both these sections seems to be, that where there is no officer certain duties of an officer may be performed by a private' person, selected for that purpose ; as in the absence of a proper number of militia officers, a private maybe ordered to command a. platoon, or to warn the company; but that would not make an officer of the soldier. A justice is not empowered to make sheriffs, deputies, or constables, the only officers of this sort known to our law; but for the purpose of speedy justice, he. is allowed, in a particular case, to place another in the officer’s stead; but this no more makes such person an officer, than appointing a person guardian makes him parent of the ward, because he is then in loco parentis; and it cannot be presumed that it was intended by the law to place these minute men upon the same ground as the permanent officer of the government, by guarding them with a penal law. They have the remedy of common citizens by action or indictment for assault and battery, and that probably was deemed sufficient. But if it was so intended, it was not so expressed, and it is not for the court to supply any supposed defect, especially in a criminal law. The judgment of the county court is reversed and a new trial granted.