Floyd v. State , 79 Ala. 39 ( 1885 )

SOMERVILLE, J.

The special constable appointed by the justice of the peace was an officer defacto, although he was ineligible to the position by reason of his minority. The justice was invested by statute with the authority to appoint in certain specified contingencies, and was the exclusive judge of their existence.—Code, 1876, § 768; Noles v. The State, 24 Ala. 672. The official acts of the special constable were, therefore, just as valid for all purposes as if he had been a legally apjDointed officer acting de jure, so far as the public and third persons were concerned.—Cary v. The State. 76 Ala. 78; Joseph v. Cawthorn, 74 Ala. 411; Masterson v. Matthews, 60 Ala. 260; Heath v. The State, 36 Ala. 273; Mayor v. Stoneum, 2 Ala. 390; Sheehan's Case (122 Mass. 445); s. c., 23 Amer. Rep. 374; Hildreth v. McIntire, 19 Amer. Dec., p. 63, Note; State v. Carroll, 9 Amer. Rep. 409.

The resisting of an officer de facto, or escaping from his custody, while under arrest, was as much a violation of law as if the officer were one de jure.—Andrews v. The State, 78 Ala. 483; 1 Bishop’s Cr. Proc. (7th Ed.) § 464. If every culprit were permitted to collaterally assail the personal eligibility of officers of the law, while in their custody, by attempts to resistor escape-from them, a most dangerous obstruction would frequently be raised to the orderly administration of justice.

The defendant was in the custody of the special constable at the time of his escape, the magistrate-having taken no step,.nor made any order, by which his legal status was changed. lie had a right, therefore, to pursue and re-take the defendant,asa necefsary means of preserving such custody of him. — Code, 1876, § 4672.

The rulings of the court fully accord with these principles, and the judgment is affirmed.