1 Tenn. 428 | Tenn. Sup. Ct. | 1809
Lead Opinion
This was an indictment for a misdemeanor in office as a constable, in permitting the escape of a person committed to his custody, and charged with a crime. A question was made whether the State was bound to produce the record of the constable's appointment; and to show that such record was not necessary the following authorities were read. 2 M'N. 488; 3 Term Rep. 366; 5 Term Rep. 623; 6 Term Rep. 664; Act 1741, c. 5. In actions brought against public officers for injuries arising from official acts or omissions it is sufficient to show that they acted in an official capacity. There is no *429 necessity to show the record of their appointment. In cases where officers justify under official authority, or are plaintiffs in that capacity, the rule is different, and the record of that authority, as the best evidence, must be produced.2
Dissenting Opinion
The warrant of commitment, under the authority of which the constable held the person charged, was offered in evidence by the attorney-general. The defendant's counsel objected to its reception in evidence, on the ground that the official character of the persons committing, was not expressed.
The mittimus, or warrant, was signed and sealed by two justices of the peace, with the initials J. P. added.
Addendum
This is proper evidence to go to the jury in mitigation of damages. *430
Addendum
was inclined to think there was a distinction between an application for a discharge of a person in custody under the authority of such a mittimus, and the case before the Court, and that the evidence ought to be received.
The defendant's counsel then offered to give evidence that one of the committing magistrates told the constable he might permit the prisoner to go at large, and that it would be sufficient if he had his body at court, and that this was the advice of a lawyer.
Addendum
this were the case of an application to discharge on habeas corpus the mittimus would be insufficient, and the person would be discharged; so it has often been determined in this State. If such a mittimus would be bad in that case it will be so in this; we cannot perceive any difference, and consequently the indictment cannot be sustained. Under the warrant, the officer was not justifiable in holding the person in custody, and consequently not liable for an escape.
Addendum
The evidence offered cannot be received in any point of view. It is neither to be received in mitigation or justification. The commands of the law must be obeyed, and if the opinion of lawyers or others are to be received in evidence we shall soon, be without law. Every member of the community is bound to know the law, and it furnishes no excuse that he was badly advised. The adoption into the law of evidence of a principle which authorizes the giving the out-of-doors opinions of men with respect to the law seems pregnant with consequences of the most evil tendency.
Verdict for defendant.
Upon motion of the attorney-general, MARR, to tax the defendant with costs, he read 2 H. H. P. C. 122; 1 East, 13, in order to show that the Court erred in excluding the evidence of the mittimus on the ground that the official character of the justices of the peace was not sufficiently shown.
Addendum
In this case there was convincing evidence that the constable permitted the accused person to go at large, and from the law now read by the attorney-general it seems the Court erred in excluding the mittimus,1 therefore let the defendant pay all costs.
CAMPBELL and OVERTON, JJ., concurred in this opinion.
NOTE. — The weight of authority seems to sanction the position that the courts will judicially know the public officers of the State and counties, and their signatures without any official designation. Fancher v. Montegre, 1 Head. 40; State v. Cole, 9 H. 626; Major v. State, 2 Sn. 11;
