Commonwealth v. Doherty

¶1An indictment on the Gen. Sts. c. 164, § 10, for being armed with a dangerous weapon when arrested for a criminal offence, must allege, in substance or effect, that the arrest was lawful. Commonwealth v. O'Connor, 7 Allen, 583. This indictment alleges that the defendant was arrested by a police officer of the city of Boston under and by virtue of a warrant from a magistrate, particularly described ; but it does not allege that the arrest was lawful, or that the officer was authorized to make it. By the laws of the Commonwealth, police officers may be appointed in towns and cities, with all or any of the *444powers of constables, except that of serving and executing civil process. Gen. Sts. c. 18, § 38; c. 19, § 2. Police officers might therefore be appointed in Boston with or without the power of serving such a criminal process as is described in the indictment ; and, for aught that appears in the indictment, the officer who served the warrant upon the defendant may have had no lawful power to do so. The indictment is therefore bad, and should have been quashed. The King v. Everett, 8 B. & C. 114 S. C. 2 Man. & Ryl. 35. United States v. Stowell, 2 Curt. C. C. 153. Indictment quashed.