It seems to be well settled by the courts, both in this country and in England, that where an officer "comes armed with process founded on a breach of the peace, he may, after demand of admittance for the purpose of making the arrest, and refusal of the occupant to open the doors of a house, lawfully break them in order to effect an entrance, and if he act in good faith in doing so, both he and hisposse comitatus will be protected." 1 Russell Cr., 9 Ed., p. 840; (711) 2 Hawk P. C., Bk. 2, ch. 14, sec. 3; East P. C., 324, ch. 5, sec. 88;S. v. Smith, 1 N. H., 346; Barnard v. Bartlett, 10 Cush., 501; 1 A. E., 746; S. v. Shaw, 1 Root, 134.
"The doctrine that a man's house is his castle, which cannot be invaded in the service of process, was always subject to the exemption that the liberty or privilege of the house did not exist against the King."Commissioners v. Reynolds, 21 Am. Rep., 510. Hence, the rules applicable where a forcible entry is effected in order to execute a capias issued in a civil action, do not apply in the case at bar. 1 A. E., 722. The officer did not justify the breaking on the ground that he had a search warrant, but a warrant for the arrest of a particular prisoner, and we *Page 494 are not called upon, therefore, to enter into a discussion of the constitutional safeguards that protect dwelling-houses against under search.
If the officer have valid process in his hands, he does not become a trespasser ab initio if he fail to find the accused in the house after breaking the door. Hawkins v. Commissioners, 61 Am. Dec., 147 (14 B. Mon., 318). The learned counsel called attention to the fact that the defendant notified the officer, before the breaking, that the person against whom the capias had been issued was not in his house, and insisted that, in the face of this notice, the officer did not have such reasonable ground for believing he would find the person for whom he was searching as would justify the use of force in effecting an entrance. There is a general presumption of law that the officer in the execution of process was not moved by malice or other improper motive, but acted in good faith with the intent and desire to discharge his duty to the State. Lawson Presumptive Ev., 61. This presumption is not sufficiently rebutted by the mere proof of the declarations of the defendant. It is (712) possible that the officer had good reason to believe that the defendant bore such relation to the accused that he would be tempted to aid him in evading arrest by telling a falsehood. The right to break into houses in order to arrest criminals would be confined within very narrow limits if their comrades could give them shelter in their houses and by simply telling a falsehood take from officers in pursuit of them the benefit of the presumption of law that ordinarily protects them.
If the officer had the authority to break into the house, it will of course be conceded that the defendant was guilty of an assault in drawing an axe upon him when he entered. It was not error to tell the jury that if they believed the evidence the defendant was guilty.
No error.