1. It is a good defense 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 lawfully appointed a constable.
2. Where the only evidence of the appointment of one to be a Constable was an order of the 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 sureties": Held 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.
3. It is not necessary that the defendant should have made an objection to the prosecutor's authority, at the time the assault was committed.
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 show that the prosecutor was at the time a lawful officer and armed with a lawful execution. The defendant not (359) raising the objection at the time, in our opinion makes 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 section 4, chapter 24, Revised Statutes. The record of the appointment of the prosecutor to be constable, does not show 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. New trial.
Cited: S. v. Magness, 26 N.C. 219; Burke v. Elliott, Ib., 362.
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