Majority
p. 13Washington Oyer and Terminer, July 16, 1823. Before Walworth, Circuit Judge, and the County Judges. The People vs. William Muldoon.
Headnote
On the trial of an indictment for an assault and hatteiy in resisting the jailer, the prosecutor must produce the mittimus, to show that he had a legal right to detain him.The prisoner was indicted for an assault and battery upon the jailer.
It appeared on the trial, that the prisoner was in the room with other prisoners, who had been brought from the Salem jail to this court at Sandy Hill, by the jailer. Being requested by the jailer to go into another room, the prisoner refused to
p. 14
go, and the jailer attempting to coerce him to do so, he resisted and struck the jailer.
J. Willard, for the prisoner,
objected that the prosecutor had not shown any right to detain the prisoner, and that such right could not be proved by parol.
The prosécutor' must produce the mittimus to show the prisoner wds legally in his custody. For aught that appears, the prosecutor was illegally detaining the prisoner, and if so, he had á right to resist any attempt of the prosecutor to restrain him of his liberty.
The mittimus was not produced, and the prisoner was acquitted.