The People v. Nash

• Decision Date: 01 January 1868
• Citation: 1 Idaho 206
• Parties: The People, Respondents, v. N. J. Nash, Appellant.
• Court: Idaho Supreme Court

1 Idaho 206

The People, Respondents, v. N. J. Nash, Appellant.

Supreme Court of Idaho

January 1, 1868

PROCESS DEFINED.-The word "process," as used in the statute, is equivalent in meaning to the sheriff's official authority.

CRIMINAL LAW-PLEADING-DEMURRER.-The objection that an indictment charges two offenses must be taken by demurrer.

IDEM.-An objection to an indictment, that it sets forth no sufficient charge of a criminal offense, should not be allowed to prevail in a doubtful case, but only when the insufficiency is so palpable as clearly to satisfy the mind of the judge that a verdict thereon would not authorize a judgment.

DEGREE OF PROOF.-It is not necessary for the prosecution to exclude every possible defense in order to secure a conviction.

OBSTRUCTING OFFICER-NOTICE.-While the statute requires an officer to inform a party upon whom he is about to serve criminal process of his office and purpose, this need not be done when the officer is well known to such person.

APPEAL from the Second Judicial District, Boise County.

Rosborough & Preston, for the Appellants.

An indictment under a statute must state all such facts and circumstances as constitute the statutory offense, so as to bring the party indicted clearly within the provisions of the statute. (People v. Cohen, 8 Cal. 43; Brown v Commonwealth, 8 Mass. 65; Commonwealth v Phillips, 16 Pick. 213; People v. Muckler, 9 Cal. 44; People v. Saviers, 14 Cal. 30;

People v. Allen, 5 Denio, 76; People v. Taylor, 3 Denio, 91.) The charge, as laid in the indictment, that the officer was in the "discharge of his duty as such sheriff," is too general. (1 Archb. Crim. Pr. and Pl. 291; Id. 146.) The indictment should show what duty the sheriff was performing, so that the court may see that it was official duty. (2 Id. 290 et seq.) J. J. May, District Attorney, for the People.

McBRIDE, C. J.,

delivered the opinion of the court,

CUMMINS J., concurring, KELLY, J., dissenting.

The defendant was indicted for resisting an officer while in the discharge of his official duty, by assaulting him with a pistol. On arraignment in the lower court the defendant demurred to the indictment on the ground that it did not allege "that Crutcher (the officer) was attempting to serve any process, or that he had any process to serve at the time," etc. This the court overruled and defendant excepted, and now assigns said ruling as error. The defendant then entered the plea of not guilty, and on the trial was convicted of the offense alleged in the indictment. On the trial the court was asked to instruct the jury as to several questions suggested by defendant; some of these instructions were refused and others given, as appears by the record, to which exceptions were taken. After the verdict the defendant moved in arrest of judgment, and though several grounds are assigned, we can only consider one of them, because under the provisions of section 293 objections which are grounds of demurrer can only be taken advantage of on demurrer, except two, viz., want of jurisdiction in the court, and that the facts stated do not constitute a public offense. Inasmuch as the defendant did not urge on demurrer the objection that the indictment charged more than one offense, and that it does not conform to the requirements of the two hundred and thirty-third and fourth sections of the Criminal Practice Act, she is precluded from raising them afterward, except the objection that the indictment does not show facts constituting a public offense. (Crim. Pr. Act, sec. 293.)

The motion in arrest of judgment was denied, as also a motion for a new trial based on the exceptions, and on appeal all the objections are before us for review. We have before us, therefore, three propositions:

1. The sufficiency of the demurrer.

2. Was there sufficient in the indictment to show that an offense had been committed?

3. Was the motion for new trial properly denied?

As to the demurrer, though the statute provides five distinct grounds of demurrer the defendant urged but one, and it is not a little difficult to say whether that was intended to be under the second or fourth subdivision of the section (285) which specifies the various causes of demurrer. The language of the demurrer is that the indictment "does not set forth facts sufficient to constitute the crime alleged therein, in this, that it does not appear that said James I. Crutcher was attempting to serve any process at the time of the alleged assault, or that he had any process to serve," etc. I take it that the defendant meant by this demurrer to except to the sufficiency of the facts charged to constitute the offense named in the indictment. He did not mean to say that there was no such public offense, but only that the statement of it was insufficient in the particulars suggested, viz., that the officer assaulted was armed with such process as to make an assault upon him a crime.

The question then is, What kind of process is it necessary for an officer to have in order to make resistance to him an offense? Does the law require that he should be armed with a written process from some court, in order that the offense of resistance to the officer could exist? Is there any unwritten process, any power inherent in the officer which is equivalent to written process from some court, which requires of him the performance of official duties, and which protects him while in their performance? The answer is found in the statute. All of the official duties of the sheriff are there prescribed and enjoined, and they are, briefly, to serve the written commands of the various courts in his county, to obey the directions of such courts as their ministerial officer, to collect cer- [1 Idaho 209] Page 210

That this is correct is evident from the statute itself. The language in section 100, crimes and punishments, is: "Any person who shall willfully obstruct, resist, or oppose any sheriff, etc., in serving or attempting to serve any law process, or order of any court, judge, justice of the peace, or any other legal process whatever. Strictly speaking, process," as its etymology shows, is something issuing out of, or from a court or judge, and if the statute had stopped there some force would be given to the defendant's construction of the term, but in order to cover any conceivable cause of official duty the legislature adds "or any other legal process whatever." That this means all cases when the sheriff is engaged in duty enjoined by law is clear or it would be a useless sentence. It was to carry out the principle that duty to perform and protection in that duty should go hand in hand.

This being the case, it follows that no matter whether the officer was serving a warrant of arrest, civil process for attachment of goods, or distraining for taxes due, the defendant in resisting him, while discharging his official duty, was resisting him while serving process and would be guilty under the statute. The crime would be as great in civil as in criminal cases, when he had a warrant as when he had none, and no less a crime in the latter than the former. The question would be whether he was in the performance of some duty either ordered by a court or enjoined by law, and if defendant knew that he was so engaged, the kind of process could be a matter of no consequence. These positions as to what is legal process are affirmed in the case of the People v. Nevins, 1 Hill, 166-169, by Judge Cowan in a decision where the whole question is fully and elaborately discussed, and fully sustains all that I claim for the term "process" in this case.

2. The motion in arrest of judgment claims: 1. That the indictment charges more than one offense. As this objection was not urged by the demurrer it was too late to take it after trial (see sec. 293); 2. That the indictment does not substantially conform to sections 233 and 234 of the Criminal Practice Act. For the reason assigned above we cannot consider

this objection, except so much of it as is found in the third allegation...