this was not within the statute punishing persons 66 resisting" any officer "while engaged in the lawful execution of any civil or criminal process." RYAN, C. J., delivering the opinion of the court, said: "The statute under which the offense is charged, makes it a misdemeanor to resist an officer engaged in the lawful execution of lawful process. Statutes of similar character elsewhere, we think generally, use several words descriptive of the offense. A Federal statute of 1790, from which the descriptive words are copied in Pennsylvania, Illinois and other States, employs the words, obstruct, resist or oppose; and the Federal statute, obstruct, hinder or prevent; a Massachusetts statute, intimidate, hinder or interrupt. In the New York statute, as in our own, the word resist, stands alone. Our statute was passed in 1854, and probably followed the New York statute, adopted in 1845. We find no construction of the latter reported. And the question we are now to pass upon appears to be one of the first impression. "The statute must, of course, receive a strict construction. In commenting on the last Federal statute mentioned, the late learned and able Judge Kane, after a critical and discriminating analysis of the statutory words, obstruct, hinder, and prevent, says: These distinctions are, however, the appropriate subject of scholastic, rather than judicial disquisitions;' and holds that the words bear the same meaning in the statute. We do not so understand the rule of construction. We take it to be correctly stated by Mr. Dwarris: 'When the Legislature, in the same sentence, uses different words, the courts of law will presume that they were used to express different ideas.' And vice versa, when our legislature saw fit to drop descriptive words used in other statutes, such as oppose, obstruct, hinder, prevent, interrupt, intimidate, etc., we feel bound to understand that it did so intelligently, and omitted such words because it did not intend what such words should signify. "It is obvious that many or all of these words would include passive, indirect and circuitous impediments to the service of process. Some may imply merely negative difficulties, as hindering or preventing an officer by not opening the door, or removing an obstacle or identifying a person or thing; or indirect difficulties, as preventing or obstructing on officer by warning or concealing a person, or removing or hiding a thing; or difficulties in parol, as intimidating an officer by threats, or interrupting him by outcries, or preventing him by false identification or information. All these passive, indirect, circuitous, collateral difficulties in the way of an officer's execution of his process, we take to be excluded from our statute by the use of the single word, resist. To resist is to oppose by direct, active and quasi forcible means. Crabbe tells us that resistance is always direct, and, applied to persons, always implies more or less force. Bouvier defines it to be the opposition of force to force. The word is Latin, and its use seems to be singularly true to its etymology and to retain the exact classical meaning. It is the policy of this statute to protect an officer in the execution of process ne vis humana resistat. We apprehend that to be still the precise meaning of the word employed in the statute, to stand against or to withstand. This we take to be the popular, the scholarly and the legal sense of it. In United States v. Lukens,3 is found a loose dictum, purely obiter, that refusal to obey an officer is resistance of the officer; which we can not regard as of any authority in reason or law. And to bring a case within the statute, it is 1 U. S. v. Williams, Whart. Am. Crim. Law, sec. 1295, note n. 2 p. 706. 33 Wash. 335. not enough that the execution of the process is opposed or obstructed or interrupted or hindered or prevented; the officer must be resisted. It is not enough that he is embarrassed or impeded or defeated in the execution of his process; this must be by resistance to him, to bring it within the statute. And the resistance must be active and direct towards him. He may be balked, baffled, circumvented, frustrated, and yet not be resisted. All these things are contempt of the process of the law, which are highly censurable and may be actionable; but, short of resistance, they do not come within the provision of this statute. No mere interference with the person to be arrested or the thing to be seized, before arrest or seizure made not involving an actual resistance of the officer, is within the statute. The gist of the offense is personal resistance of the officer. "We do not hold that there must be actual force or even a common assault upon the officer. It is not easy to see how, but resistance may be possible within our construction of the statute, without actual violence or technical assault. Of course we agree with the learned judge before whom the case was tried, that mere threats to the officer, unaccompanied by force, would not warrant the conviction of the defendants. Mere words can not constitute resistance. Undoubtedly threats, with present ability and apparent intention to execute them, might well be resistance, as they might well amount to an assault; but not such vague, intemperate language as these defendants seem to have used without apparent purpose. "There was probably a common assault upon the plaintiff in replevin, which had no relation to the officer and can not aid the finding of the jury. Had the defendants so conducted themselves towards the officer, we should have no difficulty in upholding the verdict. "There is no pretense in this case that the officer had actually or constructively seized the horses to be replevied. As far as they were concerned, his warrant was wholly unexecuted. The jury must have found that he would have executed his writ by seizing them had not the defendants driven the horses beyond his reach. If the defendants had withstood the officer in his advance upon the horses, they would have been guilty of the offense charged upon them. But they did nothing of the kind. They effected their purpose of keeping the officer and the horses apart, not by preventing the officer from approaching the horses, but by causing the horses to run from him. They baffled the execution of the process, but they did not resist the officer. They withstood nothing which he did, though they left him nothing to do. Towards the officer himself they were wholly passive. If the process had been for their arrest, and they ran away from the officer before arrest; or it had been for the arrest of another, and he ran away before arrest, by their counsel, we could not hold them guilty of resisting the officer. Had the replevin been for a bird, which they let fly from its cage and from the officer, before seizure; or for a dog, who followed their call out of reach of the officer, before seizure; or for a boat in which they sailed away, or a carriage in which they drove away from the officer, before seizure; we could not hold that they resisted the officer. In all these cases, the execution of the process might be hindered or prevented, but the officers would not be resisted. Had the defendants, in these circumstances, mounted these horses and ridden away as fast and as far as Gilpin, we could not say that they were guilty of resisting the officer under this statute. "Whether it was wise or unwise for the statute to stop with the single word, resist, it is not for us to say. It is possible that the Legislature did not care to put in the power of every ministerial officer to trouble unfortunates with whom this was not within the statute punishing persons "resisting any officer "while engaged in the lawful execution of any civil or criminal process." RYAN, C. J., delivering the opinion of the court, said: "The statute under which the offense is charged, makes it a misdemeanor to resist an officer engaged in the lawful execution of lawful process. Statutes of similar character elsewhere, we think generally, use several words descriptive of the offense. A Federal statute of 1790, from which the descriptive words are copied in Pennsylvania, Illinois and other States, employs the words, obstruct, resist or oppose; and the Federal statute, obstruct, hinder or prevent; a Massachusetts statute, intimidate, hinder or interrupt. In the New York statute, as in our own, the word resist, stands alone. Our statute was passed in 1854, and probably followed the New York statute, adopted in 1845. We find no construction of the latter reported. And the question we are now to pass upon appears to be one of the first impression. "The statute must, of course, receive a strict construction. In commenting on the last Federal statute mentioned, the late learned and able Judge Kane, after a critical and discriminating analysis of the statutory words, obstruct, hinder, and prevent, says: These distinctions are, however, the appropriate subject of scholastic, rather than judicial disquisitions;' and holds that the words bear the same meaning in the statute. We do not so understand the rule of construction. We take it to be correctly stated by Mr. Dwarris: When the Legislature, in the same sentence, uses different words, the courts of law will presume that they were used to express different ideas.' And vice versa, when our legislature saw fit to drop descriptive words used in other statutes, such as oppose, obstruct, hinder, prevent, interrupt, intimidate, etc., we feel bound to understand that it did so intelligently, and omitted such words because it did not intend what such words should signify. "It is obvious that many or all of these words would include passive, indirect and circuitous impediments to the service of process. Some may imply merely negative difficulties, as hindering or preventing an officer by not opening the door, or removing an obstacle or identifying a person or thing; or indirect difficulties, as preventing or obstructing on officer by warning or concealing a person, or removing or hiding a thing; or difficulties in parol, as intimidating an officer by threats, or interrupting him by outcries, or preventing him by false identification or information. All these passive, indirect, circuitous, collateral difficulties in the way of an officer's execution of his process, we take to be excluded from our statute by the use of the single word, resist. To resist is to oppose by direct, active and quasi forcible means. Crabbe tells us that resistance is always direct, and, applied to persons, always implies more or less force. Bouvier defines it to be the opposition of force to force. The word is Latin, and its use seems to be singularly true to its etymology and to retain the exact classical meaning. It is the policy of this statute to protect an officer in the execution of process ne vis humana resistat. We apprehend that to be still the precise meaning of the word employed in the statute, to stand against or to withstand. This we take to be the popular, the scholarly and the legal sense of it. In United States v. Lukens, is found a loose dictum, purely obiter, that refusal to obey an officer is resistance of the officer; which we can not regard as of any authority in reason or law. And to bring a case within the statute, it is 3 1 U. S. v. Williams, Whart. Am. Crim. Law, sec. 1295, note n. 2 p. 706. 33 Wash. 335. not enough that the execution of the process is opposed or obstructed or interrupted or hindered or prevented; the officer must be resisted. It is not enough that he is embarrassed or impeded or defeated in the execution of his process; this must be by resistance to him, to bring it within the statute. And the resistance must be active and direct towards him. He may be balked, baffled, circumvented, frustrated, and yet not be resisted. All these things are contempt of the process of the law, which are highly censurable and may be actionable; but, short of resistance, they do not come within the provision of this statute. No mere interference with the person to be arrested or the thing to be seized, before arrest or seizure made not involving an actual resistance of the officer, is within the statute. The gist of the offense is personal resistance of the officer. "We do not hold that there must be actual force or even a common assault upon the officer. It is not easy to see how, but resistance may be possible within our construction of the statute, without actual violence or technical assault. Of course we agree with the learned judge before whom the case was tried, that mere threats to the officer, unaccompanied by force, would not warrant the conviction of the defendants. Mere words can not constitute resistance. Undoubtedly threats, with present ability and apparent intention to execute them, might well be resistance, as they might well amount to an assault; but not such vague, intemperate language as these defendants seem to have used without apparent purpose. "There was probably a common assault upon the plaintiff in replevin, which had no relation to the officer and can not aid the finding of the jury. Had the defendants so conducted themselves towards the officer, we should have no difficulty in upholding the verdict. "There is no pretense in this case that the officer had actually or constructively seized the horses to be replevied. As far as they were concerned, his warrant was wholly unexecuted. The jury must have found that he would have executed his writ by seizing them had not the defendants driven the horses beyond his reach. If the defendants had withstood the officer in his advance upon the horses, they would have been guilty of the offense charged upon them. But they did nothing of the kind. They effected their purpose of keeping the officer and the horses apart, not by preventing the officer from approaching the horses, but by causing the horses to run from him. They baffled the execution of the process, but they did not resist the officer. They withstood nothing which he did, though they left him nothing to do. Towards the officer himself they were wholly passive. If the process had been for their arrest, and they ran away from the officer before arrest; or it had been for the arrest of another, and he ran away before arrest, by their counsel, we could not hold them guilty of resisting the officer. Had the replevin been for a bird, which they let fly from its cage and from the officer, before seizure; or for a dog, who followed their call out of reach of the officer, before seizure; or for a boat in which they sailed away, or a carriage in which they drove away from the officer, before seizure; we could not hold that they resisted the officer. In all these cases, the execution of the process might be hindered or prevented, but the officers would not be resisted. Had the defendants, in these circumstances, mounted these horses and ridden away as fast and as far as Gilpin, we could not say that they were guilty of resisting the officer under this statute. "Whether it was wise or unwise for the statute to stop with the single word, resist, it is not for us to say. It is possible that the Legislature did not care to put in the power of every ministerial officer to trouble unfortunates with whom authority to demand acceptance and payment of foreign bills of exchange," etc., "and to exercise such other powers and duties as by the law of nations, and according to commercial usage, or by the laws of any other State, government, or country, may be performed by notaries public." 1 Now all this is simply declaratory and permissive. A notary public is an officer recognized by the law of nations. That law vests him with certain powers, and his seal is taken notice of by foreign courts. Our statute declares our notaries public to be a notary public within the purview of the law of nations. Other States, governments and countries may, by law vest certain powers in notaries public, in consideration of their public character, and the power of authentication attributed to their seals. A sister State may, for instance, confide to them the power of taking within their theater of action, proofs of conveyances to be recorded, and of instruments and depositions to be used in evidence within its territory. Our law says that our notary may exercise these powers; but they are powers conferred by and exercised by foreign laws. The same remarks apply to the powers and duties which "according to commercial usage 99 may be performed by notaries public. Our law permits our notaries to perform them. By commercial usage, this protest could be made before a notary public, and by the same usage, he could administer the oath and authenticate the protest; but our law did not require the oath, nor was it, under our law, "necessary for the prosecution and defence of any private right, or for the ends of public justice."2 This subdivision of the statute defini. tion of perjury, refers to a class or classes of cases wholly different from this. But if it be comprehensive enough to cover this case, then where is the evidence in the indictment of the existence of any private right or claim to the prosecu tion or defence of which the sworn protest could be applicable? But such a protest is a purely voluntary act. The master may properly make it for the information of his owners, or the satisfaction of the underwriters, in case of a loss by perils of the sea. He can not, however, be required to make it, nor can the owner "by commercial usage "be required to procure it. If made, it forms a very proper portion of the preliminary proofs of loss. As a voluntary statement, whether sworn to or not, it may be important evidence against the master for the owner, or for the underwriter in the owner's action on the policy, but it is never, under our law, evidence for the owner against the insurers. I am of the opinion that the crime of perjury can not, under our statute, be founded upon such a protest, and the district attorney is advised to enter a nolle prosequi. Motion granted. § 119. Perjury and False Swearing Distinguished - Texas Statute. - The difference between perjury and "false swearing" under the Texas code is pointed out in Langford v. State. In this case HURT, J., delivered the following opinion: The appellant was tried and convicted of the offense of false swearing, from which conviction he appeals to this court. The assignment of false swearing is made upon an affidavit sworn to before A. W. Morrow, a justice of the peace for Williamson County, wherein the appellant charges one James Flint with the theft of a mule. The appellant moved to quash the indict 1 2 Rev. Stats., p. 283, secs. 44, 45. 39 Tex. (App.) 283 (1880). |