Putman v. State

• Decision Date: 29 October 1887
• Citation: 5 S.W. 715,49 Ark. 449
• Parties: PUTMAN v. STATE
• Court: Arkansas Supreme Court

5 S.W. 715

49 Ark. 449

PUTMAN v. STATE

Supreme Court of Arkansas

October 29, 1887

APPEAL from Carroll Circuit Court, J. M. PITTMAN, Judge.

Judgment affirmed.

C. T Coffman for appellant.

1. A "special" deputy sheriff is an officer not known or recognized by our laws, except in certain special cases. Mansf. Dig., secs. 2668, 2008, 2391; Bish. Cr. Pro., vol. 2 sec. 884; 103 Mass. 443; 17 Ill. 373; Mansf. Dig., secs 6318-19-20.

A special deputy is in no sense a public officer. 2 Jac. & W., 468; Greenl. Ev., vol. 1, sec. 83, note 4.

2. The indictment is insufficient, as it does not charge that appellant resisted "knowing" the said officer to be a deputy sheriff or other officer. Bishop Dir. & Forms, sec. 839; Bish. Cr. Pro., vol. 1, secs. 522, 887; 21 Ind. 474; 2 Cush. 577; 17 Vt. 657; Bish. Cr. Law, vol. 2, sec. 51; 11 Oregon, 205; 7 Tex. App., 183; 8 Vt. 424; 2 Bish. St. Cr., sec. 664; 12 R.I. 251.

3. Putman is not charged with resisting an officer in the exercise or discharge of his duties, nor does the indictment set out such facts that the court can see as a matter of law that he was. 2 Bish. Cr. Proc., sec. 881; 43 Tex. 329; 8 Vt. 429; 17 Vt. 658; 59 N.H. 99.

4. It was error to admit evidence as to former resistance of process. 1 Den., 74; 4 Ark. 61; 37 id., 260; 39 id., 278; 34 id., 650.

D. W. Jones, Attorney General, for appellee.

The language of the indictment is substantially that of the statute. Mansf. Dig., sec. 1767. The word "knowingly" is not in the statute. 43 Ark. 178.

As to the power of the deputy to execute the warrant, see Mansf. Dig., sec. 6318; 1 Chitty Cr. Law, 48; 1 Bish. Cr. Pro., 646.

The charge is not resisting an officer, but resisting legal process. Sec. 2001 Mansf. Dig.

Walker was at least a de facto officer. 38 Ark. 151; id., 575.

As to evidence of former criminal act, this case falls within the exception as ruled in 43 Ark. 371.

OPINION

SMITH, J.

The indictment charged that Putman, on the 10th day of August, 1886, unlawfully and feloniously did resist the execution of a certain warrant of arrest, duly issued by the Clerk of the Eastern District of Carroll county, Arkansas, commanding the arrest of Dock Putman upon a charge of grand larceny, said Clerk then and there having authority to issue such warrant of arrest, the same being criminal process, by actually drawing a gun upon and threatening one T. O. Walker, he, the said T. O. Walker, then and there being duly and legally appointed a special deputy sheriff of Carroll County, Arkansas, to serve and execute said warrant of arrest, and then and there having legal authority to serve and execute said warrant of arrest, against the peace, etc.

A demurrer to the indictment was overruled and after conviction a motion in arrest was denied. The supposed defects in the indictment are that the officer resisted is described as a special deputy sheriff and that the indictment does not contain the word "knowingly" or its equivalent.

The indictment is based on sec. 1767 of Mansfield's Digest: "Every person who shall resist the execution of any civil or criminal process, by threatening, or by actually drawing a pistol, gun or other deadly weapon upon the Sheriff or other officer authorized to execute such process, shall, upon conviction thereof, be imprisoned in the penitentiary for a term not less than one nor more than five years."

It is argued that a special deputy sheriff is not an officer known to our laws; that the appointment of deputies by the Sheriff must be sanctioned by the Circuit Court or Judge or by the County Judge and that such appointment must be recorded; and that Walker, the person assaulted, was at the utmost only the private agent of the Sheriff and not within the protection of the statute. It is true that sections 6318-20 require the Sheriff's appointments to be approved and recorded. This refers to his general deputies and does not, as we conceive, take away the common law right of the Sheriff to depute his authority to another for a particular service, as for the execution of one writ. Sec. 2668 of Mansfield's Digest authorizes the Sheriff to specially deputize a suitable number of persons in each election district of his county to attend at the polls and preserve order. Such appointments do not require the approval of any court. In like manner section 4975 of Mansfield's Digest recognizes the power of any officer, to whom civil process is directed, to appoint a private individual to serve the same, by an indorsement over his hand. It would lead to inconvenience if the Sheriff had not power to appoint a special bailiff on an emergency to arrest persons charged with crime. He cannot perform all of his duties in person; and the public service might suffer if he could not, by an indorsement on the warrant, authorize a third person to execute it in his name. Such a power he possessed at common law and no harm can result to the public by holding that the statutes have not deprived him of this power, if it be borne in mind that he is responsible for the acts of such a special deputy. Murfree on Sheriffs, sec. 71; Guyman v. Burlingame, 36 Ill. 201.

By the averment, then, that Walker was a special deputy sheriff, we understand that he was specially authorized to serve this warrant. Now, the authorities are not altogether harmonious that a special deputy is an officer within the meaning of the law. But the reason of the thing and the better opinion demand that, in the performance of his duty, he should be accorded all the protection which his principal would enjoy. Murfree on Sheriffs, sec. 83; State v. Moore, 39 Conn. 244; but see State v. McOmber, 6 Vt. 215; Kavanaugh v. State, 41 Ala. 399.

Then as to the indictment not charging that Putman knew Walker to be an officer, when he resisted service of the warrant; it is to be observed that the statute, which creates and defines the offence, does not contain the word "knowingly" or any equivalent term. In such cases it is ordinarily sufficient to charge the offence substantially in the language of the statute.

Section 2007 of Mansfield's Digest requires the person making the arrest to inform the person about to be arrested of his purpose, and the offence charged against him, and, if required to exhibit the warrant. The presumption is that this duty was discharged and if the defendant...