After argument, the opinion of the Court was delivered by
Williams, J.The respondent was indicted for impeding and *112hindering a Judicial officer of this state under the 5th section ^ ü . . of the act for the punishment of certain inferior crimes and misdemeanors. By that section and by a subsequent statute passed altering the punishment, it is enacted “ that if any person or persons shall impede or binder any officer, judicial or executive, civil or military, under the authority of this state, in the execution of his office, such person shall be liable to pay a fine, or be confined to hard labor in the state prison.” On the trial of the respondent on this indictment, the evidence was that a writ had issued in favor of Abiathar Pratt and wife, against the respondent, which had been duly served and returned to Ezra Morgan, Esq. the justice who issued the same, and before whom the trial was to be had; that the evening before the day set in the writ for trial, the defendant under some pretence obtained the writ from the justice, carried it away, and on the day of trial, on being requested by the justice to return the writ,-refused to deliver it up, and denied that he had received it. The court charged the jury that, if they believed he thus obtained the writ with intent to detain it, and did detain the same from the justice until after the day set for trial, so as to prevent the justice from proceeding to the trial of the action, they ought to return a verdict that the respondent was guilty of the offence charged in the indictment, and that the facts charged in the indictment, if found to be true, would constitute the of-fence described in the before mentioned statute. Under this charge the respondent was found guilty, and on exceptions to the charge and to the decision of the court in rejecting certain testimony, the cause is now before us.
The principal question is, whether from the facts thus found there was such an impediment or hindrance of a judicial officer in the execution of his office, as constitutes the offence charged in the indictment. And it is to be remarked that the statute is highly penal, and is designed to punish those who interrupt by forcible means any officer, judicial or executive, civil or military, in the execution of his office, and also to protect those officers, while in the actual discharge of their duty, from any violent or forcible interference from those whose object it is to prevent them from discharging their duty. Having this view of the intent of the statute, we are of opinion that to constitute an offence against it, the impediment or hindrance to the officer must be while he is in the actual discharge of the duties ofhis office ; and that an act which may in its remote consequences, only, have the effect of prevent-*113tng the officer from discharging his official duty, would not be the ° J offence provided against m this statute.
If we give to this section of the statute the construction contended for, it would follow that, if any person should by improper practices prevent a constable from returning a writ, or by false information, or other means, should prevent a justice from attending at the place fixed for trial, he would be guilty of impeding and hindering a judicial officer in the execution of his office : and, by the same reasoning, preventing a non-commissioned officer from warning the men belonging to a company when thereto required by his commanding officer, by similar means, would be impeding or hindering a military officer in the execution of his official duties, and subject the persons to the penalty for violating this section of the statute before mentioned. We cannot believe that this was the intent of the legislature, nor that the act will bear this construction. The justice, Morgan, not being in the execution of the duties of his office at the time the respondent obtained from him the writ, notwithstanding it was obtained from him in the improper manner set forth in the case, the respondent was not guilty of the offence under the statute charged in the indictment.
We have also examined the question, , whether the facts charged in the indictment and proved against the respondent did not amount to an ofience at common law : for if they did, we might pronounce sentence against him for the misdemeanor. It was admitted by the attorney for the respondent that the act proved may have been a misdemeanor, and it is a familiar principle that any obstruction of lawful process by active means, or by the omission of a legal duty, is indictable as a misdemeanor. But on examining this indicimentit is found there is no offence charged which could subject the respondent to punishment. Nothing more is charged than a mere trespass in unlawfully seizing, taking and carving away, the writ out of the custody of the justice. It is not stated that it was detained until after the day set for trial; that it was taken with any intent or design to impede or hinder the justice in trying the cause, or with any intent to prevent the course of public justice ; nor is it alleged that the act charged did occasion any impediment or hindrance to the justice in the execution of his office. It is true, that in the close ofthe indictment it is charged, that he knowingly and wilfully did impede and hinder, &tc.; but it is not said that it was, by means of the acts stated, unlawfully done by the respondent. In order to make the act done by this respondent, which is but a trespass, an *114offence against public justice, it must haw been done with an in tent to prevent the course of public justice. And when a particular bad intention accompanying the act is necessary to constitute it a crime, such intention should be laid in the indictment.
Smith, for State, appointed by the court for this trial. Hall, for defendant.This indictment cannot be sustained for an oflence at common law, and no sentence upon the same can be pronounced against the respondent.
As there is no motion in arrest, and the application is only for a new trial, a new trial must be granted, and the attorney for the state can determine whether it will be expedient to pursue the prosecution any further.
A new trial granted.