Foster v. State

47 Ala. 643

• Court: Supreme Court of Alabama
• Decided: January 15, 1872
• Status: Published

Opinion

PECK, C. J.

The judgment in this case must be reversed. The charge of the court was a clear invasion of the province of the jury. It was a charge upon the effect of the testimony, and was given without being required by either of the parties. — Revised Code, § 2678.

[Note. — The opinion in this case was delivered at the June term, 1871.1

The evidence, if believed, did not prove that McCartney was a deputy sheriff, or other legal officer.

The sheriff testified that he had never appointed him a deputy sheriff in any way pointed out by law. Had not specially deputed him as deputy sheriff, to execute the papers in this case, but had verbally authorized him to execute process as deputy sheriff. This did not make him a deputy sheriff. — Code, § 155.

The witness Parker, by whom the process was issued, testified he had verbally ordered the said McCartnéy to arrest the prisoner named in the writs set out in the bill of exceptions. This did not make him a deputy sheriff or a constable, nor authorize him to perform the duties of a constable. — Revised Code, § 852. There was no evidence of a vacancy in the office of constable, or that the constable of the precinct or beat was interested, or otherwise prevented from executing the process.

The evidence, if believed by the jury, was by no means sufficient to justify the charge of the court, “that if they believed the evidence, they were bound to find the defendant guilty, under the second count in the indictment.”

Let the judgment be. reversed, and the cause remanded for another trial.