Parish v. State

130 Ala. 92

Opinion

TYSON, J.

The warrant expressly directed Josiah Williams to execute it. The justice issuing it is invested by statute with authority to appoint him in certain specified contingencies and he is the exclusive judge of their existence.—Code, § 978; Floyd v. The State, 79 Ala. 39; Noles v. The State, 24 Ala. 672. His official act in attempting to arrest the defendant, as he was commanded to do, was just as valid for all purposes as would have been the act of the regularly elected 'constable of the beat had he attempted the execution of the warrant.—Floyd v. The State, supra; Cary v. The State, 76 Ala. 78; Heath v. The State, 36 Ala. 273.

The warrant was not void by reason of any defect appearing on its face.—Spear v. The State, 120 Ala. 351, and cases cited. Nor was it void because issued on Sunday.—24 Am. & Eng. Ency. Law, 578 and note 3; Hammons v. The State, 59 Ala. 164.

The verdict, of the jury finding the defendant guilty on the second count- was an acquittal of him upon the first. It follows, therefore, that it is immaterial whether that count (first) was demurrable or not.—Walker v. The State, 61 Ala. 31; Murray and Bell v. The State, 63 Ala. 164.

There is no error in the record, and the judgment must be affirmed.