Murphy v. State

55 Ala. 252 | Ala. | 1876

MANNING, J. —

‘The indictment in this cause is in the form, and has as much particularity in its allegations, as that prescribed by the Code requires, The first and second grounds for demurrer are, therefore, not well taken.

2. The words, “ or a notary public of said county,” contained in the indictment, is an alternative designation of the office of J. B. Fuller, by whom the warrant was issued. Under our constitution, a notary public is, ex officio, a justice of the peace, or exercises “ the same jurisdiction ” within the scope of his authority; and the description of the officer by whom a warrant was issued, as a justice of the peace, or a notary public, in the alternative, is in harmony with the provisions of the Bevised Code on the subject of indictments.— Bevised Code, §§ 4112, 4123, 4124, 4125. The demurrer was, therefore, properly overruled.

3-4. The warrant of arrest was sufficient, according to section 3982 of the Bevised Code; and it was not fwictus of-ficio, when the defendant escaped, after being brought to the office of the magistrate, or when the constable afterwards was resisted and beaten by defendant during the endeavor to arrest him. Hence, as all the charges asked, numbered 1 to 6, inclusive, were founded on the assumption of one or the other of these propositions, they were properly refused.

5. The remaining instruction asked is objectionable, as being an argument rather than a charge. Its assumptions, also, were in opposition to section 2687 of the Bevised Code, which declares: “ Whenever it appears that process is regular on its face, and is issued by the competent authority, a sheriff, or other ministerial officer, is justified in the execution of the same, whatever may be the defect in the proceeding on which it was issued.”

The judgment must be affirmed.