Spear v. State , 120 Ala. 351 ( 1898 )

TYSON, J.

The defendant was indicted, tried and convicted in the city court of Montgomery for resisting officers in the execution of a writ of arrest issued by the clerk of the criminal court of Pike county.

By provisions of the act of the General Assembly, “To' establish a criminal court for the county of Pike” (Acts, 1888-89, p. 631), it was made the duty of the judge of the circuit comí;, within ten days after the passage and approval of this act, to enter an order upon the minutes of his court, directing and requiring the clerk to deliver to the judge of the criminal court, all indictments for misdemeanors then pending and entered in said circuit court; and upon the transfer and delivery of the same the jurisdiction of the circuit court ceased, and exclusive jurisdiction was conferred in said cases upon the criminal court of Pike county. And all indictments for misdemeanors preferred by the grand jury, after its passage, were and are to be returned by the clerk of the circuit court to the judge of said criminal court, and filed in said criminal court and process thereon to be issued by the clerk of that court. This act further provides, that the clerk of the circuit court shall be ex officio clerk of the criminal court.

The only question raised and insisted upon in argument by appellant’s counsel is, that the writ of arrest, undertaken to be executed by the officer's upon the défendant, was void.

It can now be regarded as the settled law of this State that an officer charged with the duty of executing process, is bound to do so, unless the process is void upon its face, or the court issuing it is without ■ jurisdiction. The officer, in discharging this duty, is not bound to inform himself of irregularities in the indictment or other initial proceedings, made the basis for the issuance of the writ.—Murphy v. State, 55 Ala. 252. In the case of Brown v. The State, 109 Ala. 87, Chief Justice Brickell stated the doctrine to be : “As a general proposition, it may be stated that the officer is justified in the execution of the process, when it proceeds from a court or magistrate having jurisdiction to issue it, unless invalidity appears on its face. He is not bound and has no authority to inquire into the regularity or legality in the proceeding prior to its issue.”

The first insistence of defendant is, that it nowhere appears that the indictment has been filed in the criminal court of Pike county, and that the writ on its face purports to be issued by “ O. W orthy, Clerk of the Circuit Court of Pike County,” and therefore, it must have been issued upon an indictment for a misdemeanor pending in the circuit court of that county, of which that court had no jurisdiction ; it having been ousted by the act above referred to establishing the criminal court.

The words of this act ex vi termini conferred jurisdiction upon the criminal court, and the mere failure to endorse upon the indictment its filing in that court, if this fact had been made to appear, was a mere clerical irregularity which could avail the defendant nothing. And again the fact that the writ was signed by 0.' Worthy designating himself as “Clerk of the Circuit Court” can not affect the validity of the writ. By the act establishing the criminal court he was, by virtue of being clerk of the circuit court, exofficdo clerk of the said criminal court, and this, the officers and the defendant were bound to know. Indeed, it was unnecessary that he should have added any words descriptio persones after his signature. Johnson v. State, 73 Ala. 21. His official relation to these courts was a matter of law, of which all officers, persons and courts in this State will take notice.

The contention that the writ designated the defendant as “G-. Spear” instead of setting out his full Christian name is without merit. This might have been a good ground for a plea in abatement to the indictment, but without this plea, if defendant had gone to trial, the conviction would have been legal.—Winter v. State, 90 Ala. 637; Washington v. State, 68 Ala. 85; O'Brien v. State, 91 Ala. 25. It not infrequently happens that an offense is committed and an indictment is preferred against the offender where his name is entirely unknown, and, therefore, not alleged in the indictment. In such a case, the warrant or writ of arrest Avould contain no name at all, but only such a description of the person charged that would enable the officer executing the writ, to sufficiently identify him for the purpose of making the arrest. Any other rule would license strangers, whose true names are unknown, to commit crimes, and if apprehended in them, legalize-, their resistance of the officers of the law, charged with the duty of enforcing it, and impose upon the officer the burden of knowing, béfore undertaking the arrest, that the true name of the offender, is correctly stated in the warrant. Should he be misinformed, in this respect, and notwithstanding, he may know that the person upon whom he is undertaking to execute the writ, is the person wanted, yet, forsooth, because the warrant designates such offender by his initials, he has the right to resist the officer. This appears from the testimony of the defendant, to be this case, at least in so far as his being the person intended 'to be named in the warrant. It finds no lodgment in any of the adjudications of this court or in sound reasoning and logic.

The only remaining point insisted upon for the invalidity of the writ, is that it omitted to state any offense. It contains these words : “An indictment having been found at the Spring term 1897 of the circuit court of said county against G. Spear for the offense of carrying a concealed pistol, you are commanded,” etc. An examination of sections 4601, 5208 and 5253 of the Code of 1896 will show three forms for warrants or writs of arrest. Under sections 4601 and 5208, they are designated as warrants, and under section 5253 as writs of arrest. The first two relate and govern proceedings in the county and justice of the peace courts, while the latter relates to proceedings where an indictment has been found. It will be observed that each of these forms contains substantially the same requirements, to-wit: the name of the defendant, a statement of the offense charged by name, the county in which it was issued, and to be signed by the officer issuing it.—Johnson v. State, supra. In the case of Brown v. The State, 63 Ala. 97, the warrant of arrest issued by the justice charged the defendant with "the offense of failing to work the road.” This court held that this was a sufficient designation of the offense, and in the opinion, in speaking of this warrant, said : “A warrant is sufficient, if it designates the offense byname or describes it, or if it employs terms from which the offense may be inferred.”

In Brown v. The State, 109 Ala. 86, it is said the warrant "must also state the offense either by name or so that it can be clearly inferred.”

In Williams v. The State, 68 Ala. 84, it was said: "A warrant of arrest issued by a justice of the peace, commanding the officer to arrest the accused ‘to answer the criminal offense of larceny,' has been held to be sufficiently regular on its face to justify the officer in executing it.” In Rhodes v. King, 52 Ala. 275, it was held that a warrant reciting the offense of obtaining goods by false pretenses, need not recite an intent to injure or defraud, though such an intent is an essential constituent of the ciime. This case was -approved in the case of Williams v. State, supra. See also the case of Crosby v. Hawthorn, 25 Ala. 221.

Chapter 135 of the Code of 1896 (Art. VI of Code of 1886) designates the offense as "carrying concealed weapons.” These words, we concede, would not be sufficient to support an indictment, yet the same strictness, as the cases above quoted and cited show, is not required in a warrant or writ of arrest, and we hold that the offense in this writ was sufficiently designated. We find no error in the record.

Judgment affirmed.