103 Ark. 391 | Ark. | 1912
(after stating the facts). Counsel for defendants in their brief only argue four grounds for reversal of the judgment. Other assignments of error are made in their motion for a new trial;but, inasmuch as they have not favored us with an argument on them in their brief, under our rules of practice, they will be deemed to have been waived or abandoned.
1. It is first urged that the judgment should be reversed and dismissed upon the defendant’s plea of former jeopardy.
The record shows that no ruling of the court was asked or obtained upon this plea. The immunity from second jeopardy guaranteed by the Constitution is a personal privilege which the accused may waive, and such waiver may be implied. 17 Am. & Eng. Ency. (2 ed.) 605; 6 Am. & Eng. Ann. Cases, 132, and case note.
The defendants, having elected to go to trial without asking the court to pass upon their plea of former jeopardy, are deemed to have waived or abandoned it. They could not take the chances of a favorable verdict, and, when defeated, revert to a matter which would have prevented a trial. They must abide the result which they invited by going to trial without asking the court to pass upon their plea of former jeopardy.
2. The record shows that the sheriff of White County had in writing appointed J. F. Williams a deputy sheriff, and pursuant to this appointment Williams had taken the oath of office, and was acting as deputy sheriff, pursuant to such appointment. It is now contended by counsel for defendant that the appointment was void, because the approval of the county judge had not been indorsed upon his appointment and recorded as required by section 7752 of Kirby’s Digest. We do not deem it necessary to express an opinion on this question, for Williams was a de facto officer, and his act could not be collaterally inquired into.
In 1 Wharton, Criminal Law, § 652, the doctrine is stated as follows:
“The officer’s title is not at issue in such a proceeding {i. e., a prosecution for resisting an officer in the service of process) when it appears that he is an officer de facto, that is, the recognized official representative of a government in actual power.”
In 1 Bishop, New Criminal Law, 464, the author says: “It is probably the better doctrine, though the decisions as to it are not harmonious, that the criminal law will not justify a person in resisting an arrest by an officer de facto on the ground that he is not such de jure.” See also State v. Quint (Kan.), 69 Pac. 171.
3. It is next urged that the court erred in giving the following instruction to the jury:
“There seems to be some stress laid on the fact as to whether there was any force used by these officers in resisting or obstructing this process. Force is not necessary under this indictment. You might obstruct the process through any means that makes an obstruction or resistance of lawful authority. It may be done by threats, intimidation, or resisting it in any other way which obstructs the process would be obstruction of process.”
The indictment in this case was found under section 1960 of Kirby’s Digest, which reads as follows:
“If any person shall knowingly and wilfully obstruct or resist any sheriff, or other ministerial officer, in the service or execution of, or in the attempt to serve or execute, any writ, warrant or process, original or judicial, in discharge of any official duty, in case of felony, or any other case, civil or criminal, or in the service of any order or rule of court, in any case whatever, he shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than fifty dollars, and may also be imprisoned not exceeding six months.”
Under the facts as developed by the State, there were threats shown upon the part of the defendants, coupled with the present ability and apparent intention to execute them, and this was sufficient, under the statute, to constitute the offense of obstructing the execution of the process in question. State v. Scott, 123 La. 1085 (17 Am. & Eng. Ann. Cases 400), and case note on page 402; State v. Welch, 37 Wis. 202.
In Pierce v. State, 17 Tex. App. 240, the Court of Appeals of Texas approved the following charge:
“As to what constitutes an opposition to the execution of a warrant or resistance of 'an officer, the jury are charged that any act wilfully done with intent to deter or prevent any officer from the performance of his duty, and prevent him in making the arrest, would come within the meaning of the statute. If the means used is sufficient to prevent the officer in making the arrest, through fear, terror or otherwise, caused by the opposition or resistance, it would make the offense complete if it had the other elements hereinafter charged upon.” See also Woodworth v. State, 26 Ohio St. Rep. 196.
It must be admitted that the instruction in this case is somewhat involved, and is not couched in as clear terms as it should have been. However, this objection to the instruction is not fatal to it, and should have been met in the court below by specific objections on the part of the defendant.
4. It is finally contended that the defendants had the right to resist the service of the attachment because the officer had no authority to arrest Price at the time he attempted to do so, and at the time the resistance was offered, because Price was then and there a member of the militia, in attendance at muster. See section 6323, Kirby’s Digest.
We do not deem it necessary to decide this question. In a note to be found in Cooley’s Constitutional Limitation, (7 ed.) page 192, it is said that it is not a trespass to arrest a person privileged from arrest, though the officer be aware of the fact. The arrest is only voidable, and the party may waive his privilege.
The process of attachment in this case was valid on its face, and was issued by a court of competent jurisdiction: and if it be conceded that Price was privileged from arrest at the time, his exemption from arrest was a personal privilege, and as such could be waived by him. 3 Cyc. 924; Woods v. Davis 34 N. H. 328; Brower v. Tatro, 115 Mich. 368, 73 N. W. 421; Smith v. Jones, 76 Me. 138, 49 Am. Rep. 598; Leal v. Wigram, 12 Johns. (N. Y.) 88; Tarlton v. Fisher, 2 Douglas (Court K. B.) 671; State v. Polacheck, 77 N. W. (Wis.) 708; Prentis v. Commonwealth, 16 Am. Dec. 782, 5 Randolph (Va.) 697.
If Price was entitled to the immunity claimed, there are legal modes by which that privilege might be vindicated. It might have been done by the order of the court issuing the attachment, or by a judge on habeas corpus. The fact that Price may have been privileged from arrest did not authorize the defendants to obstruct the process of the court.
The judgment will be affirmed.
