Majority
p. 109*Hubbard against Mace.
Headnote
When the front door of the defendant's house kept fastened! and the usual entrance was through the back door, and the sheriff, having entered by the back door, while it was open, in the night, broke open the door of an inner room in which the defendant was with his family, and arrested him, the arrest was held lawful.STORMS, for the defendant,
moved to set aside the capias ad resp. issued in this cause, and all proceedings thereon. It appeared, from the affidavits which were read, that the deputy sheriff arrested the defendant, about 2 o’clock, A. M., in his house. The front door of the defendant’s house was fastened, and was not used for the purpose of entrance. The defendant had let part of the house to a tenant, and the only passage to that part of the house occupied by the defendant, was through the back door into the kitchen, which communicated by a door to the adjoining room, and through that to the room occupied by the defendant. The back door was open, when the deputy sheriff entered the house, and the inner doors were not locked or fastened: but as soon as the deputy raised the latch of the door of the defendant’s room, the defendant held the door fast, so that the deputy sheriff could not enter, until he procured assistance, and forced the door open, when he made the arrest.
J. Lynch, contra.
If the fact that the outer door had been broken open had been clearly shown, we should have had no difficulty in granting the application. It appears, however, that the usual access to the inner rooms was through the back door and kitchen, which were open; and that the deputy-sheriff used no more force than was necessary to break open the door of the room occupied by the defendant. The motion must be denied. (Cowper, 1.)
Motion denied.