Andrews v. State , 78 Ala. 483 ( 1885 )

SOMERVILLE, J.

The defendant is indicted for knowingly and willfully resisting “ an officer of the State ” in executing a warrant of arrest, under section 4137 of the present Code. The evidence shows that the person resisted was a special deputy of the sheriff, who was employed to execute the particular process only.

"We are satisfied that the special deputy was an officer of the State, within'the meaning of this statute. The law makes it .the duty of the sheriff to have one deputy, and authorizes him to have as many as he may think proper. — Code, § 729. The office is a mere statutory creation, and not a constitutional one. After his appointment, he had the authority to execute the process by arresting the defendant, and his duty was commensurate with his authority. Pro hac vice, he was an officer, within the generic meaning of the term, because he was executing an agency of the State under the authority of a public law. — State v. Stanley, 66 N. C. 59 ; s. c., 8 Amer. Rep. 488 ; State v. Wilson, 29 Ohio St. 348; Pond v. Vanderveer, 17 Ala. 426. It can-not be supposed that the law would impose upon him the authority and duty to make an arrest under legal process, and at the same time deprive him of the protection absolutely necessary for the successful discharge of such duty.— Murfree on Sheriffs, § 83; State v. Moore, 39 Conn. 249.

In Kavanaugh v. The State, 41 Ala. 399, it was said, that a special deputy, employed by a sheriff in particular cases, was not an officer within the meaning of section 4126 of the Code of 1876, prior to the amendment of January 24, 1876, relating to negligent escapes by sheriffs and other officers. This was .a dictum, .however, and whatever may be our view as to its soundness in that particular case, we decline to follow it in construing the statute now before us.

This decision is in harmony with the principle, that a third person is, according to the better opinion, indictable for resisting one who is merely an officer defacto, or one who has the reputation of being a lawful officer, and yet is not a good officer in point of law. — 1 Bish. Or. L. (7th Ed.), § 464.

The form of indictment sufficiently complied with that prescribed in the Code, and the objections taken- to it by demurrer were properly overruled. — Code of 1876, p. 996, Form No. 47; Murphy v. State, 55 Ala. 252; 2 Bish. Cr. Pr. (3d Ed.) §§ 884 et seq.; Cary v. State, 76 Ala. 78,

Affiftned.