14 Tenn. 525 | Tenn. | 1834
delivered the opinion of the court.
A. B. Bradford was attorney general, but the indictment is signed by Robert Hughes, appointed by the court to prosecute for the term. It is now moved to arrest the judgment because the indictment was not preferred by the proper officer.
The 5th article of the 2d section of the constitution provides, that the Legislature shall appoint an attorney or attorneys for the State, who shall hold their office during good behavior.
The act of 1817, ch. 139. sec. 8, provides, that when their is no solicitor in attendance, any attorney of the court appointed for that purpose may prosecute, and at
The court could not else than know that the attorney general was absent, and it was its duty to appoint a deputy for the time being. The orders of superior courts are general, and the existence of the facts to authorize them are presumed in cases like the present. Fields vs. the State, Mar. and Yerg. Rep. 176.
The next objection is, that the court misdirected the jury. Douglass, with two constables, with several others, in a threatening manner, took from the smoke house of Kincaid some of his negroes, claiming the right to do so by virtue of executions against Kincaid’s son-in-law. The smoke house was within the curtilage of the mansion house. The court charged the jury, that the house could not be lawfully broken open with violence, even had the negroes been subject to the executions, without first demanding admittance from Kincaid, and a refusal to open the house. This is the law in cases where the property of a defendant to an execution is in the house of a third person; a demand for admittance, and refusal, is necessary to justify the offence. 5 Co. 93, a: 4 Com. Di. 232, (Execution, C, 5.)
The fifth count in the indictment charges the riot to have been committed by violently, &c. breaking open a smoke house or out house, and taking therefrom the ne-groes of the prosecutor; and it is insisted, that it must be taken the smoke house was an out house, and no demand for permission to enter it necessary. There are five counts in the indictment to which not guilty was pleaded,, and the defence rested on the authority furnished by the
This proof was competent and necessary to sustain the first count in the indictment, and we apprehend,-as proof in aggravation on either count, it was properly heard, notwithstanding the fifth count alleges the negroes were taken from an out house.
We think that in reference to the pleadings and facts proved, the charge of the court could not have been more critically accurate, and that the judgment must be affirmed. The executions furnished no justification to the conduct of the defendant and those associated with him, had the negroes belonged to the defendant in the executions; the fact that they did not, is an aggravation, and a very serious one, if the defendant was aware of the fact, or had good reason to believe it.
Judgment affirmed.