| Ala. | Jun 15, 1852
— Tbe act of 1836 (Clay’s Dig. 509, § 11), provides tbat “ the judge of the County (now Probate) Court shall have the authority of making temporary appointments, and filling vacancies, which may occur from any cause, in either of said offices, (apportioners of hands and overseers of roads), and is hereby required to do so.” This act invests the judge of the Probate Court, without the aid of the Commissioners of Revenue and Eoads, with full power to fill any vacancies in the office of overseer of roads, after a regular appointment has been made, and a vacancy arises from any cause whatever.
The power to make such appointments is as clearly conferred by this statute on the judge of the Probate Court, as that of appointing a sheriff, when a vacancy occurs in that office, is, by the constitution, given to the governor of the State. In the latter case, this court has held, that an appointment made by the governor, when a vacancy was supposed to have existed, when, in fact, none had really occurred, conferred on the appointee such right to exercise the functions of the office, as to render his acts done therein valid, so far as they concern the public and the rights of third persons. Such an appointment, emanating from the proper authority, and being regular on its face, will constitute the appointee a sheriff de facto, even though there be another who de jure is entitled to the office; and where the latter has ceased to perform the duties of the office, and the former does perform them, his acts are not void. Flournoy v. Clements et al., 7 Ala. 535" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/flournoy-v-clements-6502456?utm_source=webapp" opinion_id="6502456">7 Ala. Rep. 535.
Such an appointment is not absolutely void, but irregular, and voidable only. The true distinction between those irregular appointments to office which are void, and those which are voidable only, I apprehend to be this; where the authority under which the officer assumes to act, shows, upon its face, that it emanates from a power which had no right to confer it, it is void; but where it is regular on its face, and emanates from a source which has the legal or constitutional right to bestow it, and it requires a reference to facts not dis-
Apply these principles to tbe case under consideration, and 5iis clear that, although Jones was, de jure, tbe overseer of •feat part of tbe road which tbe plaintiff in error obstructed, yet, Eoberts, having an order of appointment from tbe judge ■if tbe Probate Court, regular on its face, and emanating from fee proper authority, was, da facto, overseer of tbe same road, ¡and bis acts in opening it are valid as to tbe public and the plaintiff in error. She could not, therefore, call them in question in a collateral proceeding, and cover her own misdemeanor under bis supposed want of authority.
It is no objection to the regularity of this appointment, feat it is tested by tbe judge of tbe Probate Court as clerk. IBy tbe act organizing that court, tbe judge is ex officio tbe ■Berk thereof, and having made tbe appointment of Eoberts sis judge, he was bound by law to issue a copy of tbe order appointing him as clerk, in which capacity the copy in this ^record seems to have been issued. Clay’s Dig. 509, §§ 11 mad 12. Tbe court, therefore, did not err in instructing tbe fury that tbe commission of Eoberts was not void.
It is insisted, however, that tbe court erred in that portion •sf the charge in which tbe jury was instructed, that “if tbey believed tbe testimony, tbey ought to find tbe defendant •guilty.” It is urged that this charge was wrong, as it tended to deprive tbe accused of tbe benefit of any reasonable 'doubt of her guilt, which tbe jury might entertain. We do aot so understand it. Tbe testimony recited in tbe bill of Exceptions is said to be all, or tbe substance of all, which was given on tbe trial. It proceeded entirely from tbe State; it is without conflict, and establishes, beyond a doubt, tbe guilt of tbe accused. But a single point appears to have been made in tbe defence, viz: that Eoberts bad no authority
We have repeatedly held, that, where the testimony proceeds altogether from one party, and involves no conflict, the court may draw its own legal conclusion, and give it in charge to the jury. If the party against whom such charge is given desires it to be qualified, he must request the court to do so. 20 A. R. 179; 15 ib. 176; 13 ib. 713; 6 ib. 753; 1 ib. 623 ; 7 Por. 258; 9 ib. 39. There is no tendency in such a charge to deprive the accused of the benefit of all reasonable doubt of her guilt which the jury might entertain; for, if the testimony was credible, her guilt was placed beyond all reasonable doubt, and the question of the degree of credit to which it was entitled was expressly referred to the jury in the charge itself; for, I take it, that no man can be said to believe testimony, when he has a reasonable doubt of its truth.
Let the judgment be affirmed.