People v. Ferran — 1 Wheel. Cr. Cas. 61

Majority

p. 61

The People vs. Eugene Ferran.

Headnote

Upon an indiotment for assault and battery com-mitt®£ uPon an omcerexecuting a warrant’ ‘f,*1 aP" pears the officer was first travel out of tli6 record to wbethe ™ar_ barousiy peinquiry would be proper to- ^ ^convic-

Assault and Battery.

The defendant, a foreigner, was charged with commit- , , ’ TT . t, . ting a violent assault and battery upon Henry t rost, on the 15th day of'July, 1822. The prosecutor, who is an officer, came to the house of the defendant to execute a warrant upon him ; upon its being executed, Frost told he had it, and that he must go along with him ; the defendent refused, and wanted to know for what cause he had a ... warrant against him. Frost refused to tell him, but insisted that he must go with him : from words they came to ° J blows, the prisoner striking first; the prisoner was somewhat «bruised, and his clothes much torn; he was taken to “ ’ ' the police office, and bound over to answer, <fcc.

Price, counsel for Ferran,

offered to show that the rant was barbarously executed. That the prosecutor made use of much greater force than was necessary, and consequently became a trespasser abinitio, and that defendant had a right to defend himself in such a circumstañee, as well against Frost as against any other v ° J * who forcibly entered his house.

Maxwell, District Attorney,

replied that he took the law to be otherwise; but that, at all events, he thought the cer justified ; for it appeared that he received the first blow, and that in such a case, it was his duty to use such force, as to compel a compliance with the commands of the warrant.

“We have looked at the warrant, and find it legal, and a proper return has been made to it ■ “ so far it is regular ; we cannot go out of the record to “ in(lu^'e how it was executed : this inquiry might be made in reference to the penalty, if the jury should find the “prisoner guilty. It was the process of another court, for “a different cause of action : this is a trial for an assault • “ and battery, that has grown out of circumstances that did “ not exist when the process was issued. Let the trial pro- “ ceed.”

The jury found the defendant guilty.