107 Ala. 81 | Ala. | 1894
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.
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.