Howard v. State

• Decision Date: 18 May 1899
• Citation: 121 Ala. 21,25 So. 1000
• Parties: HOWARD v. STATE.
• Court: Alabama Supreme Court

25 So. 1000

121 Ala. 21

HOWARD v. STATE.

Supreme Court of Alabama

May 18, 1899

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Jack Howard was convicted of resisting an officer in attempting to execute a warrant of arrest, and he appeals. Reversed.

The appellant was indicted, tried, and convicted for resisting an officer in executing process. The indictment contained three counts, and was as follows: (1) "The grand jury of said county charge that before the finding of this indictment Jack Howard did knowingly and willfully oppose or resist W. B Gilmer, a constable of said county, in attempting to serve or execute a writ of arrest, called a 'warrant,' issued by one B. H. Screws, a justice of the peace in and for said county." (2) "The grand jury of said county further charge that before the finding of this indictment Jack Howard did resist a certain person, not an officer, to wit, G. W Keating, in attempting to serve or execute a writ of arrest called a 'warrant,' issued by one B. H. Screws, a justice of the peace in and for said county; the said Keating then and there acting in the matter of said arrest in obedience to the lawful command or summons of one W. B Gilmer, a constable of said county, to aid said Gilmer in the execution of the said process; the said Jack Howard having at the time a knowledge of said command or summons." (3) "The grand jury of said county further charge that before the finding of this indictment Jack Howard did knowingly and willfully oppose or resist G. W. Keating, a special constable of said county, in attempting to serve or execute a writ of arrest, called a 'warrant,' issued by one B. H. Screws, a justice of the peace, in and for said county. Against the peace and dignity of the state of Alabama." To each count of this indictment the defendant demurred upon the following grounds: "First, it fails to charge for what offense the warrant or writ of arrest mentioned therein was issued; second, it fails to aver or charge when the writ of arrest or warrant mentioned therein issued; third, it fails to charge for what person or persons the writ of arrest mentioned in the indictment was issued." This demurrer was overruled, and the defendant duly excepted. Upon the trial of the cause the constable who held the warrant issued by the justice of the peace for the arrest of the defendants testified to his attempting to arrest the defendant, and to the fact of the defendant's resistance to said arrest. This warrant is copied in the opinion. Upon the state offering to introduce said warrant in evidence, the defendant objected upon several grounds, the substance of which was that the warrant was void on its face, and charged no offense known to the law, and that the justice of the peace issuing it had no jurisdiction to do so. The court overruled this objection, and allowed the warrant to be introduced in evidence, and to this ruling the defendant duly excepted. These facts present the only questions reviewed by the court on the present appeal.

Hill & Hill, for appellant.

Charles G. Brown, Atty. Gen., for the State.

TYSON J.

The indictment contained three counts. Two of them were framed under section 5463 of the Code, and the other under section 5466. Each count was demurred to. The assignments of the demurrer raised the question that the warrant or writ of arrest was not sufficiently described. The contention was insisted upon that the indictment should have averred the offense mentioned in the warrant or writ of arrest, its date of issuance, and the name of the...