ON Exceptions.

Indictment, alleging that Charles H. Dearborn of Winthrop, in said county of Kennebec, on the twelfth day of October in the year of our Lord one thousand eight hundred and sixty-six, with force and arms, at Readfiold, in the county of Kennebec aforesaid, in and upon the body of one Josephus Stevens, the said Stevens being then and there a deputy sheriff within and for said county of Kennebec, legally authorized and duly qualified to discharge and perform the duties of said office, and also being then and there in the due and lawful execution'of the same, and also being then and there in the peace of said State of Maine, did make an assault, and him the said Josephus Stevens did then and there beat, wound and ill treat, and, in the due and lawful execution of his said office, did then and there unlawfully, knowingly and designedly obstruct, hinder and oppose ; and other wrongs to the said Stevens then and there did, to the great damage of him, the said Stevens, and against the peace of said State, and contrary to the form of the statute in such cases made and provided.”

To this indictment the defendant demurred, and, for cause of demurrer, alleged,

1. That the indictment is double, uncertain and informal; and

2. That the indictment, by concluding contrary to the form of the statute,” &c., charges a violation of the statute, whereas, if there be but one offence set forth, it is an offence at common law, if any.

1. The indictment is uncertain and informal. Because it does not show that the process was legal. State v. Downer, 8 Vt., 424; State r. Hooker, 17 Vt., 658; MeQuoid v. The People, 3 Gil., (Ill.,) 76 ; Cantrell v. People, lb., 356 ; 1 Wharton’s American Critn. Law, § 1293.

Because it does not show that the process was in the hands of a proper officer. 5 East, 306; State v. Hailey, 2 Strobhart, (S. C.,) 73 ; 2 Chitty’s Grim. Law, (3d Amer. ed., 144, note a,) ; the precedents in the same volume; the precedents in Archbold’s Criin. Pleading, and the form given in Train & Hurd’s Precedents of Indictments, and further authorities, requiring that the indictment shall show what the process is; that it is legal and in the hands of a proper officer.

It is important that the description of the offence should embrace these particulars, since the grade of the crime depends upon the character of the process in the officer’s hands. 2 Hawk. P. C., c. 17, § 1; .1 Iiuss. on Crimes, 409.

2. If obstructing an officer is properly charged, the verdict is double, since an assault is properly set forth and is not alleged to have constituted a part of the principal of-fence.

An assault is not necessarily an element of the offence, because there are other means of obstructing an officer. 2 Chitty’s Grim. Law, 144, note (a) ; 1 Bishop’s Crim. Law, § 364.

3. The indictment is bad, because it describes a common law offence, and concludes contrary to the form of the statute.” 1 Wharton’s Crim. Law, 183; State v. Hart, 34 Maine, 36.

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