#### STATE *vs.*MILES BRIGGS.

June 1843

It is a good defence to an indictment for an assault and battery, that the defendant struck the prosecutor to prevent his taking away the defendant’s goods and chattels, the prosecutor professing to seize them as constable, by virtue of an execution, but not having been lawfully appointed a constable.

Where the only evidence of the appointment of one to be a constable was an order of tne County Court in the following words: “ Ordered, that G. S. be appointed Constable, and that he enter into bond in the sum of four-thousand dollars, with J. O. and K. P., his *suretiesHeld*that this was a void act of the Court, and conferred no authority, it not appearing that any case existed in which they could by law exercise the power of appointing a Constable.

It is not necessary that the defendant should have made an objection to the prosecutor’s authority, at the time the assault was committed.

Appeal from the Superior Court of Law-of Gates Court*358ty} at Spring Term, 1S43, his Honor Judge Pearson presiding.

The defendant was indicted and tried for an assault and battery upon the prosecutor, who alleged that he was a constable. The facts were, that the prosecutor had a writ of *fieri facias*against the defendant, issued by a justice of the peace of Gates county to any lawful officer to execute, and under the said execution seized the goods of the defendant, and the defendant committed the assault in attempting to remove the goods from the possession of the prosecutor. The appointment of the prosecutor, as constable, appeared from the records of the County Court of Gates, to be in the following words, to-wit: “ Ordered that George W. Smith be appointed constable, and that he enter into bond in the sum of four thousand dollars, with John W. Odom and K. Parker, his sureties.” Bond was given accordingly, and nothing further in regard to his appointment appeared. The defendant then insisted that the said Smith was not, by an appointment so made, invested with the rights and powers of a constable, and that he had no right to seize the defendant’s goods by virtue ot the execution, inasmuch as it was only directed to a *lawful*officer. His Honor was of opinion, that as the defendant did not, at the time the assault was committed, insist on the defective appointment, he could not now take the objection. The defendant was convicted, and a new trial having been refused and judgment pronounced against him, he appealed to the ¡Supreme Court.

*Attorney General*for the State.

No counsel for the defendant.

Daniel, J.

If it was necessary to prevent the prosecutor from taking or carrying away from the presence of the defendant his personal property, he might strike in defence of the same, if the prosecutor was not then a lawful officer. To make the defendant criminal, the onus-lay on the State, to shew that the prosecutor was at the time a lawful officer, *359and armed with a lawful execution. The defendant not raising the objection at the time, in our opinion mokes no difference. The prosecutor certainly was not a lawful officer.— The County Court of Gates had no general authority to appoint constables for the county. The County Court, seven justices being present, may appoint a constable, if any of the' contingencies happen, which are mentioned in the 4th section of the 24th ch. of the Revised Statutes. The record of the appointment of the prosecutor to be constable, does not shew that any one of the said contingencies or events had occurred ; and there was no parol evidence, if competent, tending to supply that deficiency in the record.

Per Curiam. Judgment reversed and new trial awarded.