People v. Hall

An execution upon a justice’s judgment against Charles Hall having been issued to one Ayers, a constable, that officer levied upon a quantity of beans in the barn of the plaintiff in error, the father of Charles Hall, which the constable had been informed and believed, were the property of the debtor, who lived with his father on the premises. As the constable was about to remove the beans from the barn, the plaintiff in error told him the beans were his, and did not belong to Charles, and he bade the constable not to levy on them or remove them from the premises. The constable said he would remove them, and he attempted to do so, when the plaintiff in error put his hands upon the officer and excluded him from the barn, using only so much force as was necessary to prevent him from removing the beans. Evidence tending strongly to establish the exclusive ownership and possession of the beans

The court charged the jury, that if they should find that the constable acted in good faith in making the levy upon the beans, believing them to be the property of the execution debtor, and if they should also find that the beans were the property of Ransom Hall, and that Charles Hall had no interest in them, yet the prisoner was not justified in resisting the officer in his attempt to remove the beans, although such resistance was accompanied with no more force than was necessary to prevent such removal, and that they must convict the prisoner. To which the plaintiff in error excepted.

The prisoner was convicted and sentenced to pay a fine of twenty-five dollars, and to be imprisoned until satisfied, not exceeding twenty-five days.

The exceptions above stated present the only question in the case. The question is whether the owner of personal property is liable to an indictment for using force to prevent an officer from levying upon such property by virtue of an execution against another person where the officer acts, not wantonly, carelessly, or oppressively, but in good faith, believing the property to be that of the execution debtor.

We have not been able to find an adjudication upon the precise question in this State. It is well settled that the officer is liable as a wrong doer in a ciyil action for making such levy (Finda v. Van Horne, 16 Wend. 631 ), and it has been held that there is a distinction in. that respect between a levy under an execution, and a taking of goods pursuant to a writ of replevin; the officer being directed in the latter case to take the particu

The question before us has been passed upon in some of the sister States, but the decisions are conflicting. In Commonwealth v. Kennard, 8 Pick. 133 , it was held, that if an officer would take goods belonging to A., and in A.’s possession, upon a writ against B., A. may maintain his possession by force in the same manner as he might against any person who is not an officer. But in State v. Downer, 8 Vt. 424 , that doctrine was controverted and its opposite asserted by the Supreme Court of Vermont in a well-reasonéd opinion written by Mr. Justice Bedeield. “If,” says the learned judge, “ the owner of property may resist an officer in its defense, so may one who believes himself the owner, for it will not do to predicate crime upon so subtle a distinction as an abstract right of property. ” lie distinguishes the case from that of an illegal arrest of one person, upon process against another, in which he admits that the officer attempting to make arrest may lawfully be resisted, and says “ the case of property is very different, and depends upon criteria which are not the objects of sense.” He also adverts to the' consideration, that it is the duty of the officer to attach property whenever required to do so, as creating a distinction between his act and the gratuitous trespass of a stranger, without pretence of process.

Under our statute, the proceeding which the officer is authorized to institute, in his discretion, to try the title, to the property, in case of an adverse claim can only be resorted to, after

The doctrine of State v. Downer, was reaffirmed by the Supreme Court of Vermont in State v. Miller, 12 Vt. 437 ; Merritt v. Miller, 13 Vt. 416 ; and State v. Buchannan, 17 Vt. 573 . It has been approved and followed by the Supreme Court of New Hampshire State v. Fifield, 18 _N. H. 34; State v. Richardson, 38 N. H. 208 ; and the Supreme Court of Ohio, Faris v. State, 3 Ohio St. 159 ; see also Cokeley v. State, 4 Clark (Iowa) 477. We are referred by the counsel for the plaintiff in error to the case of State v. Johnson, 12. Alabama, .840, in which the Massachusetts case above cited was followed. But it does not appear that the cases in conflict therewith were brought to the attention of the court. We are referred by the counsel for the plaintiff in error, to' an English case cited in Wharton’s Am. Or. Law, 3 Ed. p. 554, but we have not had access to'it. The case of the People v. Wentworth, 4 Scam. 550 is also cited. The opinions above referred to seem to have exhausted the subject, and it is only necessary for us to say that we concur in the reasoning and conclusion of State v. Downer, and 'the other con7 curring cases above cited. The conviction and judgment should be affirmed.

I concur that the conviction and sentence be sustained. It is not stated in the bill of exceptions, that, at the time of the levy by the officer,.the defendant was in the actual possession of the property ; nor does it appear that at the time the officer made the attempt to remove the same he had not secured full possession of the property. The defendant gave his consent that the officer might enter upon the premises, and levy on any property belonging to Charles Hall, the defendant named ,in the execution. He had effected a complete levy upon the property and had commenced a removal of the same before the defendant attempted to interfere. The title to the property was in dispute, the constable claiming -that it was the

Hardin, J., concurs in result.

Judgment and conviction affirmed.,