
    
      The State v. Reuben Hailey et al.
    
    Any obstruction of lawful process, whether it be by active means, or the omission of a legal duty, is an indictable offence, (4 Bla. Com. 129.) But the indictment must show what the process was; that it was legal, and in the hands of a proper officer, and the mode of obstruction. — (2 Chit. C. L. 134.)
    Where, in an indictment for assaulting and resisting a deputy sheriff in the execution of his duty, the obstruction was alleged indefinitely and insufficiently, but there was nothing in the allegation concerning it, from which, in any way, a justification of the assault could be inferred, the Court held that the allegation of the obstruction might be regarded as mere surplusage, and suffered the indictment to stand, as an ordinary indictment for an assault, without a battery, upon an officer, in the execution’of bis duty.
    
      Before Mr„ Justice Frost, at Chesterfield, Spring Term, 1847.
    The State of South CaroltNa, ( m
    
      Chesterfield District. ) w
    At a Court of General Sessions begun to be holden in and for the District of Chesterfield, in the State of South Carolina, at Chesterfield Court House, in the District and State aforesaid, on the first Monday in October, in the year of our Lord one thousand eight hundred and forty-six.
    The jurors of and for the District of Chesterfield, in the State aforesaid, that is to say,-'--upon their oaths, present, That Reuben Hailey, Peter Hailey, and Stephen Brock, on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and forty-six, with force and arms, at Chesterfield Court House, in the District and State aforesaid, in 'and upon one John Trantham, then being a deputy sheriff in and for the District of Chesterfield, in the State aforesaid, and in the due execution of his said office, and in the lawful performance of his duty as such deputy sheriff of Chesterfield District, as aforesaid, then and there being, did make an assault; and him, the said John Trantham, so being in the due execution of his said office, and in the lawful discharge of his duty as such deputy sheriff of Chesterfield District, as aforesaid, then and there unlawfully did hinder, oppose, obstruct and resist the said John Trantham in the due execution of his said office, and in the lawful performance of his duty as such deputy sheriff of Chesterfield District, as aforesaid; and other wrongs and enormities to the said John Trantham, then and there did, to the great damage of the said John Trantham, in contempt of the laws of the said State, to the evil example of all others in like case offending, and against the peace and dignity of the same State aforesaid.
    McIveb., Sol. Hast. Circuit.
    
    The indictment charged that the defendants, in and upon John Trantham, being a deputy sheriff, and in the execution of his office, made an assault, and resisted him in the execution of his duty as an officer. It did not set out the warrant under which the deputy was acting, nor the offence, nor parties charged, nor the mode of resistance.
    John Trantham stated both in the direct and cross-examination, that he was a deputy sheriff, and had a warrant for the arrest of one Pledger for an assault and battery. Before the witness proceeded to make the arrest, in passing the store of the defendants, Reuben Hailey, who was standing before the door, with others, was heard by the witness to say Pled-ger should not be arrested. The witness was cautioned by others that he must expect resistance. He returned to the store, and taking Reuben Hailey aside, endeavored to dissuade him from resisting the arrest. R. Hailey said that Pledger was in his store, and that he should.not be arrested. Witness then summoned four or five gentlemen in Cheraw, to go with him and assist in the arrest. In company with these gentlemen he returned to the store of the defendants, and having the warrant in his hand, informed R. Hailey that he had come to arrest Pledger. Hailey said that he was m the store, and with an oath said Pledger should not be arrested. It was proved by this witness and others, that Reuben and Peter Hailey made violent threats against any person who should attempt to arrest Pledger, and declared that whoever attempted to do so, would act at his peril. Pledger was in the counting room, at the back of the store. In approaching that room, the party was delayed by the threatened resistance, for some time. During that time R. Hailey, while uttering threats and defiance, frequently put his hand to his bosom, with the gesture of drawing a weapon. Tran-tham said he thought he saw the handle of a bowie knife.— Peter Hailey kept near to the party, with his hands in his pantaloons’ pockets, and was seen to move one of them as if ■opening a knife. At the time they entered the store, and Reuben Hailey swore that Pledger should not be arrested, he ■directed Stephen Brock, who was a clerk, to lock the counting room door, which he proceeded, with haste, to do, and enclosed Pledger, and some others, in the room. The deputy sheriff, apprehending that if he persisted in the attempt to arrest Pledger, bloodshed, if not the death of some of the parties, might ensue, desisted, and retired, with the gentlemen who had gone to assist him. The defendants’ threats against an attempt to arrest Pledger produced an excitement in the principal business street, when it was known that the officer was about to execute the warrant.
    The jury found the defendants guilty.
    The defendants moved in arrest of judgment, on the following grounds, to wit:
    First. Because the indictment does not state the facts and circumstances which constituted the resistance charged; but states the resistance, generally, without any other specification than time and place.
    Second. Because the indictment does not specify under what warrant the officer acted, nor in what manner the defendants resisted its execution.
    Third. Because the charge in the indictment is vague and indefinite, furnishing no protection to the defendants from another conviction afterwards for the same offence.
    Fourth. Because the name or names of the party or parties, the arrest of whom was resisted, are not stated in the indictment.
    Fifth. Because the indictment is, in other respects, too vague and uncertain.
    The defendants also moved for a new trial, on 'the following grounds, to wit:
    First. That his Honor erred in permitting incompetent evidence to go to the jury to prove than John Trantham yras deputy sheriff.
    Second. That the verdict was contrary to law and evidence, inasmuch as no assault or actual resistance was proved.
    Third. That the verdict was, in other respects, contrary to law and evidence.
    McFarlan, for the motion
    cited Arch. Cr. PL 357, and 2 Chit. Cr. PI. 144, for the forms of indictments for obstructing legal process; 2 Hawk. P. C. 310. All the circumstances should appear to the Court — the obstruction, the facts, the names of the parties, and for what the arrest was to be made. King v. Fi'eeman, 2 Strange, 1226; 2 Sessions Cases, in 2 Chit. 144, margin. The indictment should not be so vague as to risk the defendant’s being tried again for the same of-fence. In this case there was no assault — no proof of an attempt to strike, and the fact of a bowie knife being shown was not sworn to.
    McIver, Solicitor, contra.
    
    The ground taken for a new trial is matter of fact. It has been settled by the verdict of the jury, under the charge of the Judge. The warrant need not be set forth, nor the names of the parties. The proof, in a second indictment could not vary, if it were for the same offence, and the defendants could not be punished twice for the same offence. If a magistrate orders an arrest without a warrant, the warrant cannot be recited. The indictment is framed to suit all cases. Proof of an individual being notoriously a public officer does away with the necessity of his showing his commission. — 1 Greenleaf’s Ev. 98.
    BlakeNey, in reply.
    There is a difference between the mode of serving a simple process in debt, and a bench warrant. The resistance of process was not an assault. It does not appear, on the face of the indictment, that the officer had a right to enter the store. — King v. Osmer, 5 East, 304.
   Wardlaw, X

delivered the opinion of the Court.

Any obstruction of lawful process, whether it be by active means or the omission of a legal duty, is an indictable of-fence.—(4 Bla. Com. 129.) But the indictment for this of-fence must shew what the process was; that it was legal, and in the hands of a proper officer, and the mode of obstruction.—(2 Chit. C. L. 134.) For the grade of the offence and the extent of the punishment depend much upon the nature of the process obstructed. Even a forcible resistance of an arrest may be defended, if it appear not that the arrest was lawful; and a third person may interfere to prevent an illegal caption, if he do no more than is necessary for that purpose. Therefore, in the case of The King v. Osmer, 3 East, 306, in an indictment for an assault, false imprisonment, and rescue, it being alleged that the defendant, upon T. B. in the due execution of his office, did make an assault, and him did imprison, and did prevent him from arresting B. W. it was held that the indictment was bad, because it did not appear that T. B. was an officer of the court, and that there could not, after a general verdict, be judgment, even for a common assault and false imprisonment; because the jury must be taken to have found that the assault was committed under the circumstances alleged, that is, under circumstances which justified the defendant. The conclusion there would have been different, if there had been nothing in the indictment from which it might be inferred that T. B. was making an illegal arrest when he was assaulted.

In the case before us, admitting that the obstruction is alleged indefinitely and insufficiently, there is nothing in the allegation concerning1 it, from which, in any way, a justification of the assault can be inferred. The allegation of obstruction may then ffie regarded as mere surplusage, and the indictment be suffered to stand as an ordinary indictment for an assault, without a battery, upon an officer in the execution of his duty.

The general verdict finds that the proof has gone to the whole extent laid, that is, to the extent of the matter necessary to constitute that offence which is well laid. How far mere matters of aggravation, not so joined with the statements of the offence as to be inseparable from it, have been established, is known to the Judge who heard the cause, and according to his sense of them, will be the punishment which, in his discretion, he may impose.

We are satisfied that under the evidence which was given, the jury was well authorized in finding that all the defendants were guilty of an assault upon a deputy sheriff, in the execution of his office. The motions are, therefore, dismissed.

Richardson, J. O’Neall, J. Evans, J. Frost, J. and Withers, J. concurred.

Motiohs dismissed.  