Pentecost v. State , 107 Ala. 81 ( 1894 )

PIARALSON, J.

1. There was no error in allowing the sheriff to testify that he had given the defendant written authority to act as his deputy. The statute— Code, § 809 — requires a sheriff to have at least one deputy. There is nothing in the statutes requiring the appointment to he in writing. At common law it might he made by parol, a power regarded as incident to the nature of the office, as being in furtherance of justice, and indispensable to the full and complete discharge of its duties. — McGee v. Eastis, 3 Stew. 308; Harris v. Bradford, 4 Ala. 220 ; Miller v. McMillen, lb. 530 ; Pond v. Vandereer, 17 Ala. 427, The written appointment which liad been made in this instance, had been delivered into the possession of the defendant, was a collateral fact, the contents of which, like a receipt, might be proved by parol, Besides, the sheriff had previously made a personal demand on defendant for the paper.

2. The objection against the proof of the appointment of defendant as deputy, because it was not shown that lie had taken the oath as prescribed by section 255 of the Code, is not well taken. If the defendant failed to take the oath, as it was shown he did, this did not prevent his being an officer de-facto, with respect to the public and third persons. To this effect the authorities seem to he very generally uniform. — Tliroop on Pub. Officers, § 630; Diggs v. The State, 49 Ala. 311; Cary v. The State, 76 Ala. 78, Floyd v. The State, 79 Ala. 39; Schloss v. Hewlett, 81 Ala. 268, Cook v. The State, 91 Ala. 54; 3 Brick. Dig. 681, § 14.

The case of Kavanaugh v. The State, 41 Ala. 399, is relied on to show, that as defendant did not take an oath of office as deputy sheriff, he was not an officer of the law, either de jure or de facto, but was a mere agent of the sheriff, and could not-, therefore, be charged with a voluntary escape. What is found in that case to justify such a. conclusion was declared to be a dictum, and repudiated in Andrews The State, 78 Ala. 483, and it was held, that a person occupying the position of a deputy under special appointment is an officer de facto. In Floyd’s Case, supra, it was held, that an officer de facto executing process placed in his hands, is entitled to the same protection that the law gives to an officer de jure; and a person who is indicted for resisting him, or escaping from him, cannot be heard to question his appointment. Surely, an officer defacto, who has executed a warrant of arrest, and who is indicted for a voluntary escape, cannot he heard to sayas a defense, that he was merely an officer de facto.

3. Tlio existence of a record or office paper and its subsequent loss having been shown, its contents, as in the case of other documents, may be proved by secondary-evidence. — Baucum v. George, 65 Ala. 259. And the admission of a party against whom secondary evidence is offered, that the primary evidence does not exist, authorizes the introduction of inferior proof.—Cooper v. Madden, 6 Ala. 431. The evidence in this case showed, that the warrant had been lost, and the defendant, himself, testified he lost it. The evidence of its contents was properly admitted.

4. There was no error in allowing the sheriff to testify as to a conversation he had with the defendant concerning the arrest, after he had made it and the prisoner had escaped. These declarations were not sought as confessions of defendant’s guilt, for, in them, he denied, his guilt; but, they gave an account of the arrest and escape, which, in connection with the other evidence in the cause, furnished some indications of guilt, and were competent, even if slight, to be considered by the jury. McAdory v. The State, 62 Ala. 159; Durrett v. The State, Ib. 434. And what the witness Jos. J. Smith, recalled in rebuttal, was allowed to depose, touching a conversation with defendant relative to the demands that Jones, Sr., — the father of the party arrested, — was making for the watch of the accused, which defendant had in his possession, was competent evidence to go to the jury, as declarations of the defendant in respect to the matter enquired about.

5. The evidence tended to show, also, that the warrant of arrest, regular in form, after it-had been issued by the justice of the peace to the sheriff, was by him delivered to the defendant, who was requested by the sheriff to execute it, and who, receiving it from the sheriff, agreed to make the arrest under it. It further tended to show, that the defendant, as deputy sheriff did arrest the deceased, having in his possession at the time, said warrant, which he exhibited and read to th¿ accused. Defendant testified, he lost the warrant, while on his way to make the arrest, and made it without having the paper ; that the accused submitted to the arrest, under the warrant the defendant claimed to have, was taken in charge and manacled, and afterwards, when near the jail, made his escape. The State claims that the escape was allowed by the defendant, for a consideration paid to him by the accused. There was evidence tending to show the guilt of defendant, and other evidence that he was not guilty.

The court charged the jury, that the defendant could not claim an acquittal, as was sought by him, on the ground, if true, that when the arrest was made, he did not have the warrant in his possession but had lost it; that having arrested the accused, under the circumstances shown, he was estopped to deny that he had said warrant, and to claim that the arrest was for that reason illegal. In this there was no error.

The first branch of the court’s general charge, was too favorable to the defendant, and there is nothing is the charge as a whole of which he can complain.

From what has been said it will appear, that there was no error in the refusal of the court to give charges 1, 2, 3, 4, 5, 6, 8, 9 and 10 requested by defendant.

There was no error in refusing charge 7. It is argumentative and calculated to mislead. It makes the impression, that if the character of a witness is shown to be bad for truth and veracity, he ought not to be believed at all in a court of justice. It is the province of the jury to believe him or not, on his own and all the other evidence in the cause.

The 11th charge requested was properly refused. Moore v. The State, 68 Ala. 360; Nabors v. The State, 82 Ala. 8.

'There is no error in the record, and the judgment of the court below is affirmed.

Affirmed.