
    The Commonwealth against Eyre.
    THIS case, .which came before the court on a motion by the defendant for a new trial, was an indictment against Franklin Eyre, containing two counts. The first charged him with an assault and battery upon Joseph Grice, Esq., as-a justice of the peace in the execution of his office : The second, with an assault and battery upon Grice, without regard to his official character. The material facts, reported by the judge, before whom the indictment was tried, were as follows: • : ■ ,
    The defendant was a ship-builder, and some workmen in his employment were at work in his yard on Sunday. Mr. Grice, who was a justice of the peace in the Northern Liberties, in company with two other justices, went to the yard and remonstrated with the defendant, on the impropriety of his conduct. Warm language ensued between Eyre and Grice, during which Eyre raised his hand and said; “ If it “ were not for your grey hairs I would tear your heart out but did not strike. Grice, with the two justices who accompanied him, then went away, intending to proceed against the defendant the next day for a breach of the Sabbath. Soon after, however, Grice returned, thinking it his duty to interfere further. An altercation again took place between him and the defendant, whose yard he attempted to enter in opposition to the will of the owner.
    The cause was tried the 23d January, 1815, at Nisi Prius, before judge Yeates, who charged the jury, that Mr. Grice as a justice of the peace, had no right to force an entry into the defendant’s yard in pursuit of testimony ; that therefore the opposition was lawful, and was not an assault and battery. As to what occurred when Grice first went to Eyre’s yard, the evidence was contradictory, and the judge left it the jury to decide, whether an assault and battery had been proved. As the opinion of the court turned principally on the first point, a detail of the evidence in relation to the last is unne.cessary.
    
      If a man. raise his hand against another, within striking distance, and at the same time say, <( If it were not for your grey hairs, Sec.” it is no assault; because the words explain the action, and take away the idea of an intention to strike.
    A justice of the peace who has an imperfect view of persons at work on Sunday, cannot forcibly enter the premises of another for the purpose of getting a bet-y ter view, in order to convict the offenders, under the act of as-, sembly of tha 22d ApriL 1 mf '
    
      The jury convicted the defendant.
    
      Sergeant and Hopkinson in support of the motion.
    If any assault has been committed, it was the resistance of the defendant to Grice’s attempt to enter the yard, because the raising of the hand, even supposing it to have been within striking distance, a fact by no means established by the' evidence, having been accompanied with explanatory words, does not amount to an assault. An intention to strike, must be apparent from the action, to constitute an offence of this nature. If therefore a man lay his hand upon his sword and say ; “ If it were not assize time I would not take such lan- “ guage,” this is no assault, because the words explain the action, and take away the idea of an intention to do a corporal injury. Gilb. Ev. 253. 1 Bac. Ab. 243. Asst. and Btty. Bull. N. P. 15.
    The only question then, is, had Mr. Grice a right to enter the defendant’s yard; for if he had not, the opposition, which went no further than was necessary to counteract his attempt to do so, was not an assault and battery. One ground on which it is pretended he was authorised to enter, is, that a breach of the peace had been committed. We do not deny, that for a breach of the peace, even doors may be broken open; but there is no authority to show, that the mere performance of an act on Sunday, though prohibited by law,.which at another time would be lawful, amounts to a breach of the peace. It is of the utmost importance to preserve the sacredness of private houses, which should never be violated except in cases of the greatest necessity. So careful is the law in the protection of rights of this description, that a positive act of assembly was necessary to authorise constables to enter pub~ lie houses, for the dispersion of tipplers on Sunday. Act of 1705, sec. 5. Purd. 521.
    Nor. was the attempt tp enter justifible under the act of the 22d April, 1794. Purd. 521. That act empowers a justice to convict on view or evidence, any person who is performing work on Sunday. If the view be sufficient, he may convict upon it; but he cannot enter the premises of another in order to get a better view. If such doctrine were established, a door would be opened to the greatest mischiefs. No man’s house would be safe from the visits of magistrates^ who, upon the slightest pretences, might under colour of executing their office, use this power for the gratification of their private animosity.
    
      E. Ingersoll and Ingersoll (attorney general) against the motion,
    insisted, that as it did not appear, that the words, “ If it were not for your grey heirs, &c.” were spoken at the time the fist was raised, that action amounted to an assault. But whatever may have been the fact, in relation to this part of the case, the opposition to the entry of the justice, who had a right to enter, was an assault. Grice had a right to enter, 1st. Because there was a breach of the peace occasioned by the performance of work on Sunday, contrary to express law, and accompanied by noise, which tended to disturb the neighbourhood, and to interrupt the tranquillity of the day. On the subject of breach of the peace, and the powers of magistrates in relation thereto, they cited, Dalt. Just. 9, ch. 3. Id. 399. Id. 410. Id. 426. Id. 584. 1 Swift, 127. 2 Hawk. ch. 14. sec. 1, 2, 3. 1 Bl. Com. 343. Id. 349. Id. 354. 4 Bl. Com. 292. 1 Ld. Ray. 250. Indeed every indictable offence may be considered as a breach of the peace, because all indictments conclude “ against the peace and dignity qf “ the commonwealth-.” Const. of Penn. art. 5, sec. 12.
    
      Grice had a right to enter; 2d. Because having had an imperfect view of a breach of the Sabbath, an entry was necessary in order to satisfy himself, and to carry the law into effect. The act of assembly gives to justices of the peace, authority to punish Sabbath breakers. As a matter of course, therefore, they must be invested with all the powers necessary to enable them to perform their duty. Laws without full authority to secure their execution, would be nugatory. It is a plain and necessary rule, that every statute giving jurisdiction, gives also a power to issue warrants, and to do every act necessary to give it effect. 4 Bl. Com. 286. Hawk. Bk. 2, ch. 13, sec. 15. If under the circumstances of this Case, a magistrate cannot enter to ascertain who the offenders are, in order to convict them, the object of the law, in j^any instances, cannot be attained.
   Tilghman C. J.

after briefly reviewing the facts, proceeded thus: — The right of the justice to enter on the defendant’s land, against his will, was the point principally contested on the trial, as it has been in the argument here. I shall therefore confine my opinion to that point, barely remarking as to the rest, that if the jury founded their verdict on the circumstance of the defendant raising his arm, at the first entrance, they were wrong, because, according to the • evidence as reported by the judge, the action of raising the arm was accompanied with words which shewed that the defendant was determined not to strike. It has been contend-1 ed, on the part of the commonwealth, that the justice had a right to enter the defendant’s yard for two reasons. 1. Because there was a breach of the peace. 2. Because the justice had a right to convict those persons who were breaking the Sabbath, on his own view. To prove that there was a breach of the peace, it is said, that by the constitution of ■Pennsylvania all indictments must conclude against the peace and dignity of the commonwealth. But this is mere matter of form. Before the revolution, the conclusion was against the peace of the king, his crown and dignity. Under a change of circumstances it was necessary to have a change of form, but. not a change of substance. There was no necessity for enlarging the circle of cases, in which it is lawful to break the doors of a man’s house; for where there is a breach of the peace, doors may be broken. At first view, it may seem extraordinary that a man should be protected in his own house against legal process of any kind. But long habit has attributed a sanctity to this domestic asylum, which ought not to be violated without good cause. It is a privilege, which is dear to the people, perhaps it tends to make them more attached to their homes, and if so, it is a feeling which deserves to be cherished, because it is in the narrow circle of home that the foundation of morals is laid. The violation of the Sabbath is a crime which deserves punishment. But when that violation consists of work, without noise or disorder, there is nothing in it like an actual breach of the peace; nothing of so pressing a nature as to require an immediate and forcible remedy. The serving of legal process on Sunday tends to disturb the quiet of that day, which it is the object of the law, on which this prosecution is founded, to protect. (Act of 22d April, 1794, 3 Sm. Laws, 177). Therefore it is, that the serving of all legal process, is forbidden by another act, (1 Sm. Laws, 25, act of 1705,) except in cases of treason, felony, or breach of the peace. And there is as much reason to apprehend disturbance from an entry for the purpose of making a conviction, as from the serving of process. It is on the ground of a conviction on view of the justice, that the attorney general rests one of his arguments. The act of assembly, says he, authorises a conviction on view, and therefore, it authorises all the means of conviction, one of which is, an entry into the place where the breach of the law is committed. If the premises are true, the conclusion is fairly drawn. But I do not perceive, that where the justice views the offence, an entry is necessary. What he sees, he may record, and convict the offender on the evidence of his own senses. But the argument for the commonwealth goes to prove, that what he does not see with suf-j ficient certainty, he may remedy by an entry for the purpose! of getting a better sight. But that is outrunning the act of assembly, which provides for two modes of conviction, one on view of the justice, the other in the usual way, by proof of witnesses. The justice may take his choice. If his view affords sufficient evidence to satisfy his conscience, he may convict without further proof, but if not, he must pro te the fact by witnesses. In the present instance, his view was, in his own opinion, not sufficient, and therefore he wished to enter. In that he was wrong: He should have summoned the offenders next day, and proceeded against them in the usual manner. But it is said, he did not know them. If he did not know them himself, he should have resorted to those who did know them. Not many offenders will escape for want of being known. It is possible that a few may, and if it should so happen, it will be better, than that an important privilege should be broken down in order to get at them.

I am of opinion, that the verdict was against law, and therefore there should be a new trial.

Ye axes J.

The question which was agitated upon the trial of this indictment before me, is of great importance to the community.' It was strenuously contended on the pari of the commonwealth, that the prosecutor, Joseph Grice, Esq., as a justice of the peace, had a legal right to force his entry into the defendant’s premises against his will, under the circumstances of the case as disclosed in the evidence.

Two men were seen working on shore, in the defendant’s ship yard, upon Sunday. Nine or ten others were seen ,working on board a vessel, which was then building. In order to ascertain who the persons were, who were thus guilty of a breach of the Sabbath, Mr. Grice deemed it his duty to enter the ship yard, which was inclosed by a fence, although opposed therein by the defendant. Independently of the defendant’s resisting the force attempted by Grice, at that time, the great bulk of the testimony did not shew any breach of the peace committed by the defendant. So that the question on this part of the case, was narrowed to a single point, whether the forcible entry of Grice was justifiable or not ? I gave it in charge to the jury, that a justice of the peace had-no right to force himself into the possessions of another, in quest of testimony against the will of the owner ; that in certain specified cases, as treason, felony, pending an affray, where a dangerous wound had been given, for breaches of the peace, or for surety of the peace, a house might be broke open, with or even without a warrant, but I knew of no principle of the common law, or of any injunction by act of assembly extending this power. Although Sabbath breaking was the violation of a divine as well as a human law, I did not consider it as an actual breach of the peace. If such compulsory domiciliary visits to search for offenders, or testimony to convict them, might be made, a man’s house would soon cease to be his castle of defence, and the greatest disorders must arise therefrom. I therefore, instructed the jury, that the entry of Mr. Grice was not justifiable, and that it was of no moment, whether the yard-gate was open or shut, if the defendant opposed his entry. I see no reason whatever, for changing the opinion I delivered to the jury. But it has been urged, that the defendant might well be convicted of an assault on Grice in the execution, of his office, from what passed at the first interview, when the two other justices were present. That matter was not much urged at the trial, nor do I think the evidence warranted the verdict, and more particularly when .it is considered, that though the ■words of the defendant were rude and improper at the time, yet they were accompanied by expressions explanatory of his intentions, which, although Grice complained of, he did ipt suggest to the other justices, that an assault had been committed on him. I concur in setting aside the verdict, and awarding a new trial.

Brackenridge J. delivered an opinion to the same effect, which the reporter has not been able to procure.

New trial granted.  