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William Mark McKinney.

The Encyclopaedia of pleading and practice, under the codes and practice acts, at common law, in equity and in criminal cases (Volume 15) online

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E. A. HAWKINS. Jr.




UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY




UKSEltERS,

- - fU



THE



ENCYCLOPAEDIA



OF



PLEADING AND PRACTICE



UNDER THE CODES AND PRACTICE ACTS,

AT COMMON LAW, IN EQUITY

AND IN CRIMINAL CASES.



COMPILED UNDER THE EDITORIAL SUPERVISION OF



WILLIAM M. McKINNEY,



VOL. XV.



NORTHPORT, LONG ISLAND, N. Y.

EDWARD THOMPSON COMPANY, LAW PUBLISHERS,

1899



l-



* COPYRIGHT, 1899,

BY
EDWARD THOMPSON CO.



All rights reserved.




TABLE OF TITLES.



Titles in italics are cross-references only.



OBSTRUCTING JUSTICE, i.

OFFER OF JUDGMENT, 32.

Office and Officers, 60.

Office Found, 60.

OFFICERS OF PRIVATE CORPORA-
TIONS, 60.

OFFICIAL BONDS, 83.

OPEN AND CLOSE, 181.

OPENING, AMENDING AND VACAT-
ING JUDGMENTS, 202.

OPINIONS OF COURTS, 304.

ORDERS, 315.

ORDER OF PROOF, 375.



ORDINANCES, 409.
Original Hills, 447.
Original Notice, 447.
Ownership, 447.
Oyer, 447.
PARDONS, 447.
PARENT AND CHILD, 450.
Parol Demurrer, 456.
Particulars, 456.
PARTIES TO ACTIONS, 456.
PARTITION, 769.
PARTNERSHIP, 829.
PASSENGERS, 1120.




THE ENCYCLOPAEDIA

OF'

PLEADING AND PRACTICE:



OBSTRUCTING JUSTICE.

BY JAMES B. CLARK.

I BY RESISTANCE TO OFFICER, 2.

1. Averments of Indictment or Corresponding Pleading, 2.

a. In General, 2.

b. Authority of Officer, 4.

c. Scienter, or Knowledge of Official Capacity, 5.

d. Kind or Nature of Resistance, 6.

2. Affidavit to Support Information, 6.

3. Pleading and Proof Variance, 7.

4. Verdict, 7.

H OBSTRUCTION OF OFFICER IN EXECUTION OF OB ATTEMPT TO
EXECUTE PROCESS, 7.

1. Averments of Indictment or Corresponding P leading , 7.

a. In General, 7.

b. Language of Statute, 8.

c. Consummation of Offense, 8.

d. As to Officer and His Authority, 9.

e. Officer's Territorial Jurisdiction, 10.

f. Deputization of Officer, n.

g. Preliminaries to Issuance of Process, 12.
h. Issuance of Process, 13.

/. Description of Process, \ 5 .
j. Possession of Process by Officer, 17.
k. Description of Obstruction, 18.
/. Time, 19.

m. Scienter, or Knowledge of Official Capacity^ 19.
n. Defective Averments Surplusage, 21.
o. Duplicity, 21.

2. Warrant, 22.

3. Pleading and Proof Variance, 22.

4. Instructions Province of Jury, 23.

5. Conviction for Lesser Offense than That Charged, 23.

15 Encyc. PI. & Pr. i 1 Volume XV.



By Besistance OBSTRUCTING JUSTICE. to Officer.

IH DISSUASION OF OR INTERFERENCE WITH WITNESS, 24.

1. Election of Mode of Prosecution, 24.

2. Averments of Indictment or Corresponding Pleading, 24.

a. In General, 24.

b. Means Used to Accomplish Purpose, 25.

c. That Witness Was Summoned, 26.

d. Materiality of Witness's Testimony, 26.

e. Knowledge of Litigation and Obligation of Witness to

Attend, 27.

f. Sufficiency of Original Proceedings, 27.

g. Conclusion, 27.

IV. INDICTMENTS FOR MISCELLANEOUS " OFFENSES, 28.

1. In General, 28.

2. Charging Offense in Language of Statute, 28.

3. Scienter, or Knowledge of Official Capacity, 29.

4. Intent, 29.

5. Particular Exercise of Office Obstructed, 29.

6. Description of Obstruction, 30.

CROSS-REFERENCES.

As to matters of SUBSTANTIVE LAW and EVIDENCE, see the title
OBSTRUCTING JUSTICE, AM. AND ENG. ENCYC. OF
LAW.

Prosecutions for Embracery, see article JURY, vol. 12, p. 661.
matters of Pleading and Practice in Prosecutions for Kindred
Offenses, see articles ASSAULT AND BATTERY, vol. 2,
p. 835; CONSPIRACY, vol. 4, p. 706; CONTEMPT, vol.
4, p. 764; ESCAPE, PRISON BREAKING, RESCUE,
vol. 7, p. 913; SERVICE OF PROCESS; STRIKES
AND BOYCOTTS; WITNESSES.

I BY RESISTANCE TO OFFICER 1. Averments of Indictment or
Corresponding Pleading a. IN GENERAL. The Particular Facts and
Circumstances which go to make the offense of resisting an officer
should be set out with such distinctness as to leave nothing open
to speculation or conjecture. 1

1. People v. Hamilton, 71 Mich. 340; that the defendant did " resist, delay,

State v. Maloney, 12 R. I. 251; State v. and obstruct " an officer, naming him,

Burt, 25 Vt. 373. in the discharge of his duty, is suffi-

Charging Offense in Language of Stat- cient. People v. Hunt, 120 Cal. 281.
ute. An indictment founded upon Necessity of Naming Person under Ar-
Rev. Stat. Ohio, 6908, and charging, rest. An indictment for resisting and
in the language of the statute, the interfering with an officer while con-
offense of knowingly and wilfully ob- veying to jail a person arrested by him
structing and abusing a peace officer, is need not state the name of the person
defective if it fails to set out the facts arrested. State v. Garrett, 80 Iowa
constituting the alleged offense. Ayl- 589.

more v. State, (Ohio C. PI.) 30 Wkly. Offense for Which Arrest Was Made.

L. Bui. 370. An allegation in a complaint for op-

An allegation in an information, posing a police officer " contrary to the

drawn in the language of the statute, form of the ordinances of said city " i&

2 Volume XV.



By Resistance



OBSTRUCTING JUSTICE.



to Officer.



Statutory or Common-law Offense. While a conviction upon an indict-
ment which fails to set out an offense defined by statute cannot
be sustained, 1 yet if the accusation is defective because failing to
charge the commission of an offense the elements of which are
defined by statute, but does state enough to make out the com-
mon-law offense of assault, or an offense under a general statute
respecting breaches of the peace, the accusation will be upheld,
and a conviction thereunder sustained. 2

Unnecessary Averments may be rejected as surplusage if the other
allegations are sufficient to charge the offense. 3



too indefinite, because failing to show
under what particular ordinance the
defendant was charged. Marshall v.
Standard, 24 Mo. App. 192.

Waiver of Defects. If an indictment
contained all the elements of crime in
its charges, no matter how defectively
stated, and the defendant does not de-
mur and stand upon the defect, but
goes to trial and a verdict is found
against him, the presumption is that
the proof established all that was
necessary to convict, and he cannot be
heard to object to the indictment.
People v. Nash, I Idaho 206.

Bill of Particulars. In North Caro-
lina, if the defendant deems the offense
to be insufficiently set out, and desires
further information, he must move for
a bill of particulars before the trial.
State v. Pickett, 118 N. Car. 1231. See
also State z: Dunn, 109 N. Car. 839.

1. Conviction for Obstructing Process,
under Indictment and Proof of Assault
on Peace Officer. An indictment for
knowingly and wilfully opposing or re-
sisting a constable in attempting to
command the peace, supported by evi-
dence that while the officer was at-
tempting to stop a fight and after he
had commanded the peace the defend-
ant resisted and struck him, will not
warrant a conviction for the statutory
offense of knowingly and wilfully op-
posing or resisting an officer of the
state " in serving, executing, or at-
tempting to serve or execute a legal
writ or process." Jones v. State, 60
Ala. 99.

2. State v. Phipps, 34 Mo. App. 400;
State v. Dunn, 109 N. Car. 839; John-
son v. State, 36 Tex. 117; State v. Car-
penter, 54 Vt. 551.

Failure to Aver Essentials of Impeding
Officer. An indictment which does
not set forth the nature of the official
duty, the manner of its execution, or
the mode of resistance, and which,



consequently, does not sufficiently
charge the offense of impeding an offi-
cer, for which a higher penalty is im-
posed by statute than for an assault,
may be upheld as an indictment for an
assault under the common law or
under a statute denouncing breaches
of the peace. State v. Burt, 25 Vt.

373-

Instructions. On the trial of an in-
dictment for assaulting an officer
which is insufficient as an indictment
for an aggravated assault because fail-
ing to allege scienter, but under which
a conviction may be had for a simple
assault, the jury should be instructed
that the defendant could not be
punished for an aggravated assault.
Johnson v. State, 26 Tex. 117.

Aiding Resistance. On the trial of
several persons for an assault upon an
officer while serving a criminal process
on one of them, an instruction to the
jury that any .act of that defendant,
after he was arrested, which amounted
to a resistance or obstruction of the
officer would render him liable, and
that any person present, aiding, abet-
ting, or approving that resistance, by
words, acts, or signs, would be equally
liable, affords no ground of exception,
if that defendant only is found guilty
of an assault on an officer in the dis-
charge of his duty, and the others are
found guilty of a simple assault.
Com. v. Cooley, 6 Gray (Mass.) 351.

3. Attempted Arrest for Matter Not
Constituting Offense. Where there is
no such crime as drunkenness under
the general statutes or village ordi-
nances, an information averring that
the accused " did obstruct, resist, and
oppose " the officer " in the lawful
execution of his office, in attempting
to arrest respondent for being then and
there drunk and disturbing the peace,"
the words " being drunk " may be
treated as surplusage and the informa-
3 Volume XV.



By Resistance



OBSTRUCTING JUSTICE.



to Officer.



b. AUTHORITY OF OFFICER Necessary Averments. The indict-
ment, information, or other like pleading should designate the
officer with reasonable accuracy, or should aver his authority with
respect to the performance of the particular duty as to which the
resistance or opposition is charged. 1

Sufficient Averments. These requirements may be satisfied in vari-
ous ways, as by a designation of the officer by his official title
coupled with a statement that at the time of such resistance ojl
opposition he was performing his duty as an officer, 2 or by state

tion upheld. People v. Rounds, 67
Mich. 482.

Unnecessary Charge of Use of Dangerous
Weapon. An allegation in an indict-
ment for an assault and battery upon
a police officer, and for knowingly and
wilfully obstructing and hindering him
in the discharge of his duty, which al-
leges that the assault was made with a
dangerous weapon, is descriptive of the
manner of the assault, does not make
it a different offense from assault upon
a police officer in the discharge of his
duty, nor affect the substance of that
charge, and may be rejected as sur-
plusage. Com. '. Delehan, 148 Mass.
254-

Unnecessary Conclusion. It is of no
importance that the conclusion of a
count is against the statute, for it may
be regarded as surplusage where the
offense is not statutory, or the conclu-
sion against the statute may be re-
garded as applicable to ihe proper stat-
ute. State v. Burt, 25 Vt. 373.

1. Marshall v. Standard, 24 Mo. App.
192.

Averment of Appointment and General
Authority. An information alleging
the appointment of the officer and his
authority to maintain and preserve the
peace is sufficient. People v. Rounds,
67 Mich. 482.

Authority to Make Arrest. An infor-
mation which alleges opposition and
resistance to an officer while making
an arrest without a warrant for a mis-
demeanor states no offense unless it
also alleges that the misdemeanor was
of a character that would justify the
officer in acting without a warrant.
McKinney v. State, (Tex. Crim. App.
1893) 22 S. W. Rep. 146.

Mistake in Name of Officer. In Iowa
an indictment erroneously setting out
the name of the officer assaulted as
Patrick Ryan, instead of Patrick Ry-
der, is not defective for that reason in
view of Code, ? 4302, providing that
" when an offense involves the com-



mission of or an attempt to commit an
injury to person or property, and is de-
scribed in other respects with sufficient
certainty to identify the act, an errone-
ous allegation of the name oi the per-
son injured or attempted to be injured
is not material." State v. Flynn, 42
Iowa 164.

Objection Not Made Below. An in-
dictment for resisting an officer while
in the discharge of his official duty
by assaulting him with a pistol, while
possibly objectionable because not
clearly showing what duty the officer
was performing or not sufficiently ex-
plicit in setting out the circumstances of
the offense, must be objected to below,
and the alleged defect cannot be urged
on appeal. People v. Nash, i Idaho 206.

2. McQuoid v. People, 8 111. 76;
State i>. Copp, 15 N. H. 212; State v.
Roberts, 52 N. H. 492; State v. Ma-
loney, 12 R. I. 251; State v. Burt, 25 Vt.
373; State v. Downer, 8 Vt. 424. And
see People v. Hamilton, 71 Mich. 340.

Policeman "in Due Execution of His
Office." An indictment charging re-
sistance to a policeman is sufficient if
it alleges that the offense was com-
mitted while the officer was in the
" due execution of his office." State
v. Pickett, 118 N. Car. 1231.

Manner in Which Duty Was Being Per-
formed. An indictment for hindering
and assaulting a policeman in making
an arrest need not allege the manner
in which the officer was attempting to
discharge his duty at the time of the
commission of the offense. State v.
Carpenter, 54 Vt. 551.

Attempting to Arrest to Maintain Peace.
An information is sufficient where it
alleges obstruction to an officer while
acting in his official capacity in main-
taining and preserving the peace and
that he was obstructed, resisted, and
opposed while attempting to arrest the
accused for disturbing the peace in his
presence. People v. Rounds, 67 Mich.
482.
4 Volume XV.



By Resistance



OBSTRUCTING JUSTICE.



to Officer.



ments of a character sufficient to show that the offense was com-
mitted against him as an officer, and not against him in his indi-
vidual or private capacity. *

Where the Grade of the Offense Is Not Changed by reason of the fact that
it was committed while the officer was acting as such, his official
character need not be averred. 2

C. SCIENTER, OR KNOWLEDGE OF OFFICIAL CAPACITY Must
Be Alleged when an Ingredient. Where an essential ingredient of the
offense is knowledge of the official capacity of the person whom
the defendant is charged to have assaulted, resisted, hindered, or
opposed, or knowledge that at the time ojf the commission of the
alleged offense such person was performing a duty imposed upon
him by law, the fact of such knowledge should be charged
positively, 3 or enough should appear fairly to warrant the in-



1. "Duly Constituted Public Officer of
the Police." An indictment describing
the officer as " a duly constituted pub-
lic officer of the police for the town of
R." is sufficient. State v. Pickett, 118
N. Car. 1231.

Constable. In 3 Chitty's Crim. Law
832, there is a precedent of an indict-
ment for assaulting a constable in the
execution of his office, and he is de-
scribed as " then being one of the con-
stables of," etc., " and in the due exe-
cution of his said office then and there
also being." In State v. Copp, 15 N.
H. 212, the court said that it would be
sufficient to allege that the person as-
saulted was a constable, provable by
evidence that he acted as such.

2. Slate v. Carpenter. 54 Vt. 551.

In the Absence of Any Statute making
an assault on a police officer an offense
of a different grade from an assault on
an unofficial person, or imposing a
greater punishment for such an as-
sault, an indictment for an assault on
such an officer need not aver the offi-
cial character of the person assaulted.
State v. Belk, 76 N. Car. 10.

Consideration by Jury of Official Charac-
ter of Person Assaulted. Where there
is no statutory distinction between an
assault on a peace officer and one on
an unofficial person, the jury may con-
sider the official character of the person
assaulted, as elicited by the evidence,
though the indictment does not aver
that the person assaulted was such an
officer. State v. Belk, 76 N. Car. 10.

3. State v. Maloney, 12 R. I. 251.

In Missouri. To sustain an indict-
ment for assaulting an officer under
Rev. Stat. Mo.. 1879, 1438, the indicl-
ment must allege that the defendant



knew the character in which the con-
stable claimed to act. State v. Phipps,
34 Mo. App. 400.

In Texas, where by statute (Penal
Code, 1895, art. 601) an assault upon
an officer engaged " in the lawful dis-
charge of the duties of his office, if it
was known or declared to the offender
that the person assaulted was an officer
discharging an official duty," consti-
tutes an aggravated assault, an indict-
ment for the offense denounced is bad,
if it fails to show either that the defend-
ant was aware that the person alleged
to have been assaulted was an officer
discharging an official duty, or that the
latter informed the defendant of the
facts. Bristow v. State, 36 Tex. Crim.
Rep. 379. And see State v. Coffey, 41
Tex. 46; Johnson v. State, 26 Tex. 117.

In Vermont, to constitute the statu-
tory crime of hindering an officer in
the execution of his office, it must be
shown that the party accused knew at
the time when he is charged to have
hindered such officer that he was one
of the officers to hinder whom is made
a crime by statute ; and that being a fact
which must be found to justify a con
viction, it is necessary that it should be
alleged in a traversable form in the in-
dictment that the party had such
knowledge. State v. Carpenter, 54 Vt.

551-

Failure to Allege Scienter Sufficiency
as Indictment for Simple Assault. An
indictment charging the assault of an
officer lawfully discharging his duties
which is insufficient as an indictment
for aggravated assault, because failing
to allege scienter, is not vitiated as an
indictment for simple assault. John-
son v. State, 26 Tex. 117.

Volume XV.



By Resistance



OBSTRUCTING JUSTICE.



to Officer.



ference or presumption that the defendant had such knowledge. 1
d. KIND OR NATURE OF RESISTANCE General Allegations Suffi-
cient. Since matters of evidence need not be alleged in the
indictment, it is in general unnecessary that the precise nature or
the particular manner of the resistance, opposition, or the like,
or the specific acts constituting the offense, should be set out,
but ordinarily it will be sufficient to charge the offense by such
appropriate language as will show its commission in fact. 2

2. Affidavit to Support Information. An information or like
accusation which is based on an insufficient complaint or affidavit
cannot be sustained. 3



1. Knowledge of Official Character.
Where by statute an assault is aggra-
vated when committed upon an officer
in the lawful discharge of his duties,
etc., if it was known or declared to the
offender that the person assaulted was
an officer discharging an official duty,
an indictment which avers an assault
by the defendant on a peace officer,
who was constable for the corporation
of the town, etc., that he was in the
lawful discharge of the duties of his
office, and that his character as such
was known by the defendant, suffi-
ciently charges an aggravated assault.
State v. Coffey, 41 Tex. 46.

" Then and There Being an Officer."
An indictment for assault on a person
named, " then and there being an offi-
cer in the lawful discharge of his
duty," is insufficient as a charge of
aggravated assault, because failing to
show that it was known or declared to
the defendant that the person assaulted
was an officer discharging his official
duties. Johnson v. State, 26 Tex. 117.

2. In People v. Hunt, 120 Cal. 281,
it was said: " The means and manner
of the obstruction, resistance, or delay
are matters of evidence, and are no
more necessary to be alleged than
the means or instrument used where
charging a defendant with the crime of
murder." See also People v. Cronin,
34 Cal. 191, as to the necessity in Cali-
fornia of alleging the means in an in-
dictment for murder.

Characterizing Resistance. If the lan-
guage of the statute be used in an in-
dictment charging resistance to an
officer, the manner of resistance need
not be set out. Oliver v. State, 17 Ark.
508.

Assault with Deadly Weapon. An
indictment charging that the defendant
did obstruct, resist, and oppose an offi-
cer attempting to effect his arrest, by



" making an assault," and did then
and there shoot at the officer with cer-
tain pistols loaded with gunpowder
and leaden balls, is not defective be-
cause it fails to charge that the assault
was made with a deadly weapon,
where under the statute such an in-
dictment is good without expressly
charging an assault. State v. Estis, 70
Mo. 427.

" Striking, Cutting, "Wounding," etc.
An indictment charging a wilful and
malicious assault by the defendant
upon an officer while in the discharge
of his duty, and that the defendant did
resist the officer by striking, cutting,
wounding, and injuring him, suffi-
ciently charges the statutory offense.
State v. Flynn, 42 Iowa 164.

Authority of Officer to Arrest. A com-
plaint for the violation of a municipal
ordinance denning as an offense resist-
ance to a peace officer of the city
jurisdiction to try such a complaint
being vested in the municipal court
must show the nature of the resistance
offered, that it may appear that the
offense was one which the municipality
would have power to punish, because
al the time the officer was engaged in
municipal service, such as making an
arrest as to which the municipal court
would have jurisdiction. Per Ellison,
J., in Marshall v. Standard, 24 Mo.
App. 192.

3. Brunson v. State, 97 Ind. 95.

Uncertain and Confused Affidavit. An
information upon a statute (Rev. Stat.
Ind., 1881) enacting that whoever ob-
structs the execution of any legal pro-
cess, or who shall forcibly free any
person from legal arrest, knowing such
person to be under arrest, shall be
punished, etc., is not sustained by an
affidavit which does not charge either
directly or by fair implication that the
defendants forcibly freed a person
6 Volume XV.



Obstructing Officer OBSTRUCTING JUSTICE. Executing Process.



3. Pleading and Proof Variance Application of General Eules.
To justify a conviction for the offense here discussed, it is neces-
sary, as on trials for other offenses, that the material allegations
of the accusation should be supported by proof. Unnecessary
allegations, however, or those which are merely descriptive of
facts which are not charged, need not be proved. 1

4. Verdict General Verdict. It has been held that where the
jury is authorized by the indictment and evidence to find a ver-
dict of either simple or aggravated assault, a general verdict of
guilty is a conviction of the greater offense. 8

II. OBSTRUCTION OF OFFICES IN EXECUTION OF OR ATTEMPT TO
EXECUTE PROCESS 1. Averments of Indictment or Corresponding
Pleading a. IN GENERAL Reasonable Certainty. In charging
the obstruction or resistance of an officer in executing or attempt-
ing to execute legal process, the indictment, information, or other
accusation should set forth with reasonable certainty and by
appropriate averments all the facts necessary to constitute the
offense, the sufficiency of the accusation in any given case being



named from arrest, but is confused and
uncertain as to the connection which
the defendants may have had with the
arrest in question. Brunson v. State,
97 Ind. 97.

1. Designation of Officer. The vari-
ance between an indictment describing
the officer as " a duly constituted pub-
lic officer of the police," and evidence
adduced to sustain it, that the officer in
question was elected chief marshal of
the town and was acting as such or
as chief constable under due authority
when the offense in question was com-
mitted, is immaterial. State v. Pick-
ett, 118 N. Car. 1231.

Authority of Officer Identity of Person
Arrested. An indictment charging re-
sistance to an officer in the discharge
of his official duty, by seeking to take
from the custody of the officer a person
arrested by him for violation of law,
must be supported by proof that the
person resisted was an officer, and that
an offense was committed by the per-
son in custody, for which the officer
was authorized to make an arrest.
Meritt v. State, (Miss. 1889) 5 So. Rep.
386.

Ordinances Violated Guilt of Person
Arrested. The failure to prove a mu-
nicipal ordinance, or the guilt of the
person whose arrest for the violation
of such ordinance was alleged to have
been resisted, affords no reason for re-
versing a conviction for such resist-
ance. State v. Garrett, 80 Iowa 589.

Allegations in Regard to the Official



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