The defendant was indicted and tried for an assault and battery upon the prosecutor, who alleged that he was a constable. The facts were, that the prosecutor had a writ of fieri facias against the defendant, issued by a justice of the peace of Gates county to any lawful officer to execute, and under the said execution seized the goods of the defendant, and the defendant committed the assault in attempting to remove the goods from the possession of the prosecutor.
Cited by 2 later decisions — most recently January 1874
2 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
If it was necessary to prevent the prosecutor from taking or carrying away from the presence of the defendant his personal property, he might strike in defence of the same, if the prosecutor was not then a lawful officer. To make the defendant criminal, the onus-lay on the State, to shew that the prosecutor was at the time a lawful officer,
*359
and armed with a lawful execution. The defendant not raising the objection at the time, in our opinion mokes no difference. The prosecutor certainly was not a lawful officer.— The County Court of Gates had no general authority to appoint constables for the county. The County Court, seven justices being present, may appoint a constable, if any of the' contingencies happen, which are mentioned in the 4th section of the 24th ch. of the Revised Statutes. The record of the appointment of the prosecutor to be constable, does not shew that any one of the said contingencies or events had occurred ; and there was no parol evidence, if competent, tending to supply that deficiency in the record.
¶2
Per Curiam. Judgment reversed and new trial awarded.
