State v. Bushey

• Decision Date: 30 January 1902
• Citation: 96 Me. 151,51 A. 872
• Parties: STATE v. BUSHEY.
• Court: Maine Supreme Court

51 A. 872

96 Me. 151

STATE

v. BUSHEY.

Supreme Judicial Court of Maine.

Jan. 30, 1902.

(Official.)

Exceptions from superior court, Kennebec county.

Fred A. Bushey was convicted of obstructing an officer in the service of a criminal process, and moved in arrest of judgment From an order overruling his motion, he excepts. Exceptions sustained.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Thomas Leigh, Co. Atty., for the State.

S. S. & F. E. Brown, for defendant.

POWERS, J. Indictment under Rev. St. c. 122, § 21, for obstructing an officer in the service of process. The respondent was found guilty, and moves in arrest of judgment for the following causes:

"First. There is no allegation in the indictment that Henry A. Hodges, the alleged constable, had in his possession any warrant or process, or that any process had been committed to him, at the time alleged or stated in the indictment.

"Second. The indictment does not allege or set forth that any crime, or what crime or offense the supposed search warrant was based upon, or what the nature of the charge was.

"Third. The indictment does not contain any allegation of the particular mode or how the defendant hindered or obstructed the constable, and does not state what acts the defendant did in this matter to prevent the constable from executing his legal power.

"Fourth. There is no allegation in the indictment that the alleged search and seizure warrant authorized or directed the searching of the premises or saloon of the defendant, and for other manifest defects in said record appearing."

1. The indictment states that Hodges, "being then and there a constable of the town of Vassalboro, legally authorized and duly qualified to discharge the duties of said office, and also being then and there in the due and lawful execution of the same, was in process of serving a search and seizure warrant issued by the judge of the municipal court for the city of Waterville." It is not necessary that there should be an express allegation that the process was in the possession of the officer. It is sufficient if such is the fair inference from all the language used. State v. Hooker, 17 Vt. 658, 668. How could Hodges be in the due and lawful execution of his office as constable, and in process of serving the warrant, unless he had it in his possession at the time? It is evident that he could not. His possession of the warrant therefore as plainly appears from the language of the indictment as if it had been directly alleged.

2. The offense is created and defined by the statute. The indictment should state all the elements necessary to constitute the offense, either in the words of the statute, or in language which is its substantial equivalent State v. Hussey, 60 Me. 410, 11 Am. Rep. 206. In speaking of the process, the words of the statute are, "process for an offense punishable by jail imprisonment and fine, or either." These words are descriptive of the offense, and they, or their equivalent, should be used in the indictment. Instead of this, however, the only description which is found of the process which the officer was obstructed in serving is that it was a search and seizure warrant in and upon the premises of the defendant, situated in Waterville, and occupied by him as a saloon. Under our statute, no warrant can issue to search for any person or thing, except for an offense in relation thereto which is punishable by jail imprisonment or fine, or either. Such a warrant, when lawful, must specially designate the person or thing searched for, and allege substantially the offense in relation thereto. Upon it the person or thing searched for, if found, is seized, and, together with the person in whose possession the same is found, returned before a proper magistrate. Upon it, if the offense is within the magistrate's jurisdiction, the person so returned is tried,...