JAN. TERM, 1856. GREENWOOD V. STATE. GREENWOOD V. THE STATE. Where it appears from the transcript that there is a conflict between the statemenis in the record entry, and in the bill of exceptions, this court will disregard the statement contained in the bill of exceptions. State v. Jennings, use dm, 12 Ark. 449. Where the record states that the jury were "duly
GREENWOOD V. STATE. VOL. 17 elected, tried and sworn herein," this court will pellaut failing to pull himself loose, hold that it is shown with sufficient certainty, by intendment, that the jury were properly sworn in turned, and struck Henderson three the cause. blows. The bill of exceptions states The appointment of a deputy sheriff continues that, "this happened in Poinsett coun-no longer than the term for which his principal ty, and within one year next before was elected ; and if the principal sheriff be reelected, it requires a new appointment, and ap-the filing of the indictment in the proval under the statute, to continue in office his cause." former deputy. Appellant moved the court to in-Appeal from the Circuit Court of Poin-struct the jury : "If they believe from sett County. the evidence, that Thompson Cooper was appointed deputy sheriff, under HON. GEORGE W. BEAZLEY, James Davidson, sheriff of Poiusett Circuit Judge. county, and that Davidson was re elect-William Byers, for the appellant. ed and qualified, after the appoint-Jordan, Attorn ey-Gen eral, contra. ment, and before the arrest of Green-wood, and that Cooper was not ap-HANLY, J. This was an indictment pointed deputy sheriff after Davidson's against the appellant, for an as-re-election, Cooper was not, in law, the sault and battery, upon the body deputy of Davidson ; and, as such, was of one Thomas Henderson. The case not authorized or warranted in taking 3339 °was tried before a jury upon a the body of Greenwood, by virtue of plea of not guilty. The facts, as they any process from the court; and that appeared in evidence, are, that one the said Cooper, in so doing, and all Thompson Cooper, who had, at one persons acting with him in the arrest time, been appointed deputy to James of Greenwood, were tresspassers, and Davidson, sheriff of Poinsett county, Greenwood had a right to repel any in-but after such appointment, David-jury offered to his person by the said son's term of office had expired, and Cooper, or any *one acting with p331 he had been re-elected, commissioned him ; " which the court refused to give and qualified, as sheriff, and Cooper and appellant excepted. had not been re-appointed deputy, but The court then gave, on its own sug-believing himself to be deputy, a writ gestion, and against the objection of of capias came to his hands against the the appellant, the following instruction appellant for an assault and battery. to-wit: "If the jury shall find from Cooper called upon Henderson to go the testimony, that Thompson Cooper with him, and assist him in arresting was appointed legally, a deputy sheriff; appellant on the capias. They found and Davidson, the sheriff, was re-elected appellant at home, and in bed, and at the next regular election, and Cooper Cooper informed him of the nature of continued to act as deputy sheriff by his business. Appellant got up, put on the consent and desire of Davidson, his clothes, and Cooper commenced the sheriff, Cooper was a legal deputy reading the writ to him, when he left sheriff; without formal re-appoint-- the house and started off in a tolerably meat." To the giving of which instruc-fast gait. Henderson pursued, and tion, appellant also excepted. overtook him at the yard fence, and The jury found the appellant guilty, just as he crossed the fence, Henderson and assessed his fine at ten dollars, and caught him by the coat tail. Appel-the court rendered judgment in con-lant endeavored to extricate himself formity with the verdict. from Henderson, by pulling loose, but Appellant moved the court for a new Henderson held to the coat tail. Apr trial, and assigned as causes : lat. That
JAN. TERM, 1856. GREENWOOD V. STATE. the verdict is contrary to the evidence. relied on for a re-consideration is, we. 2c1. That the verdict is contrary to the apprehend, based upon a misappre-law. 3d. That the court erred in refusing hension of the record. It nowhere ap-to give the instruction asked for by the pears, of record, that the plaintiff appellant. 4th. That the instruction abandoned any of the counts in his dec-given by the court is not law. laration. The statement in the bill of The motion for a new trial was over- exceptions, that such, was the case, ruled by the co urt, for which appellant furnishes no evidence whatever of the also excepted. fact. The office of a bill of exceptions The transcript from the entries of is, to preserve the evidence of facts,, the recorded minutes of the court, which, in the ordinary course of prostates: "That the defendant pleaded ceeding in the cdurts, would not other-rot guilty, to which the State joined wise appear of record in the case." By issue, and thereupon to try the issue applying the test suggested by this joined, came a jury, &c., who were court, in the case just quoted, we are duly elected, tried and sworn herein: " bound to disregard the statement con-and the bill of exception states, "that tained in the bill of exceptions, in ref-the cause was submitted to a jury who erence to the swearing of the jury, and were empaneled and sworn to try said predicate our decision, upon the point cause." we are Considering, upon the entry The caus e was brought to this court copied from the minutes of the court.1 by appeal. The question recurs, does the entry Several errors were assigned, which from the minutes of the court show, we will proceed to notice and determ- with sufficient certainty, that thejury,, ine, in the order in which they are pre- who tried the cause, were sworn in the sented. manner prescribed by law in such It is insisted on the part of the ap- cases ? pellent, that the transcript in this There have been several adjudica-cause, shows that the jury who tions of this court bearing on the ques-tried the issue in the court tion, ranging from 7 to 12th Ark. In below, were sworn in a manner the case of The State v. Smith Bell, 10 falling short of the requirements Ark. 540, Mr. Justice Scott, in deliver-335.9 *of the law in such cases. There ing the opinion of the court, said: appears, ou the face of the transcript, "The record shows that the jury were a slight discrepancy, in this: the tran- sworn only `to try the issue joined./ script of the minute entries of the This was irregular: they should have court, states that the "jury were duly been sworn to give a true verdict, ac-elected, tried and sworn," whilst the cording to law and evidence (citing transcript of the bill of exceptions Patterson v. The ' State, 7 Ark. P336 taken on the overruling of the appel- 59). Had it been stated on the record lant's motion for a new trial, only that the jury were duly or regularly states, "that the cause was submitted sworn, we would have presumed that to a jury, who were em paneled and the oath had been properly adminis-sworn to try said cause." tered." In the case of The State v. Jennings, So, in the case of Sanford v. The 10 Ark. 449, Mr. Justice Walker, in de- State,11 Ark. 331, Johnson, C. J., said: livering the opinion of the court, upon The jurors in such eases, are thejudgea a point similar to the one which we as well of the law as the facts, and, are considering at the present, re- consequently, should be sworn to try marked: "That the principal ground 1. See Lyon v. Evans, note 1, 1-360.
GREENWOOD V. STATE. VOL. 17 the case according to both, or at least it *duct he shall be responsible: [*337 should appear that they were regularly and the appointment of each deputy or duly sworn" (citing the cases from shall be approved or confirmed by the 7 to 10 Ark, above quoted). And to circuit or county court: and such ap-the same purport are the cases of Bur-proval shall be entered on the record row v. The State, 12 Ark. 70, and Bivens of the court." See Digest, sec. 6, p. v. 7he State, 11 Ark. 465.2 939. Upon the authority of these cases, It may be laid. down, we think, as we hold that the transcript shows, an unquestionable proposition, that, with sufficient certainty, by intend-since the passage of the act which we ment, that the jury were properly have just quoted, a deputy sheriff can-sworn in this cause, and we will not not be appointed, so as to be invested disturb the verdict on account of the gated with the authority of the prin-defect insisted upon by the appellant. cipal, without his appointment shall The instruction asked for by the ap-be confirmed or approved by the cir-pellant, and the one given by the court, cuit or county court, of the county in upon its own suggestion, involve the which he is to act as such deputy. same question, and the principles of And we think it clear, from the tenor law which will determine the one, of the section of the Digest in ques-will be equally decisive and conclusive tion, that this approval by one of the of the other. We will, therefore, for courts named, must precede the time the sake of brevity, consider them to-at which the person shall commence gether. to act as such deputy, for the authority It may be stated, as an incontrovPrt-to so act is derived from the law, ible proposition, that, if Thompson coupled with the appointment. The Cooper, the person who assumed to appointment, without the confirma-act as the deputy of James Davidson, tion or approval of the court, being an the sheriff of Poinsett, was not, at the inchoate authority. time the process under which the ar-We will proceed, therefore, to deter-rest of appellant was made, the deputy mine from the transcript in this cause, of Davidson, both he and Henderson, consideled in connection with the the person summoned to assist in the principles of the law bearing upon the arrest of the appellant, and on whom question, whether Cooper was the the assault and battery is charged to legally constituted deputy of David-have been made, were trespassers in son, at the time he undertook to exe-what they did: for the process which cute the process of capias on the ap-came to the hands of Cooper, whether pellant. placed there by the clerk, supposing There can be no question, that, if him to be deputy of Davidson, or by the Legislature had not considered it Davidson himself, did not authorize imperative upon that department to Cooper to execute it; and, conse-prescribe some restrictions upon the iluently, did not warrant him to call to inherent powers of sheriffs of the his aid the assistance of Henderson, to State, by the enactment of the section do what he was not authorized to do. already given, they may well have ex-The statute, under which sheriffs are au-ercised the right of appointing depu-thorized to appoint deputies, is in these ties, as a power belonging to them, de-words: "Each sheriff may appoint rived from the common law, or sanc-one or more deputies, for whose con-tioned by custom, "whereof the 2. On oath of jury see note I. Patterson v. State, memory of man runneth not to the 7-60. contrary."
JAN. TZRN, 1856. GREBNWOOD V. STATE. It is to be presumed, that the Legis-must have a new commission posterior lature had an object in view at the to his, and the sanction of the court time the provision referred to was must be obtained anew. engrafted upon our system of laws, In the case at bar, the evidence and it is manifest, we think, what shown by the transcript, renders it object was intended, and what was ex-very clear, that the instruction moved pected to be accomplished by it. It for by the appellant, did not present a was the evident intention of the naked or abstract question of law. Legislature to take from the sheriffs, The evidence is conclusive upon the throughout the State, the common law point, that Cooper had not been re-33811 right in respect *to the appoint-appointed deputy sheriff of Poinsett ment of deputies, and make its exer-county, since the re-election of David-cise dependent, tO some extent, upon son, next before the time at which he, the discretion of one of two courts, Cooper, attempted to execute the pro-and thereby better insure the appoint-cess, in conjunction with Henderson, ment of faithful functionaries—such upon appellant. We, therefore, hold as, the public might confide in on that, without such re-appointment and account of their integrity, probity and approval, or confirmation thereof by qualification. the circuit or county court of It may be 'remarked that, notwith-Poinsett county, he, Cooper, could standing the legislative enactment *not legally act as deputy sheriff. [*339 referred to, and notwithstanding the He was, therefore, not warranted in approval of the appointment by ore calling upon Henderson to aid him in of the courts named, a deputy sheriff doing Whot he had no authority to do : holds his office or appointment, not that is to say, to take appellant under for any given or named period fixed the warrant placed in his hands. His or limited by the law, but the suffer-conduct towards appellant, in his ar-ence or consent of his principal, so rest under the warrant, was a trespass that it does not extend beyond the upon his attempt to escape, constituted time limited as the period of tenure an assault and battery upon the person for the principal. The principal sheriff of appellant, which authorized appel-holds his office, under the constitution, lant to resist with just such force as was for two years. He cannot, therefore, necessary to repel the attack upon his -confer an appointment upon a deputy, person. to extend to a longer period than his The court, therefore, erred in refus-own tenure. At the time his office ing to give evidence in the cause, that expires by constitutional limitation, if the jury had not been misled by the his appointments of deputy are eo instruction of the court, their verdict inslanti, revoked by operation and im-would have been different. plication of law. Should he be re-We, therefore, reverse the judgment elected, he derives his authority to act, of the court below, and remand the as-he did in the first instance, from his cause to the circuit court of Poinsett new election under the constitution. county, with directions that a new trial He is, to all intents and purposes, a be granted the appellant, and that the new officer—is required to be commis-court proceed in accordance with law aioned anew—to take anew the oath of and not inconsistent herewith-office, make a new bond, &c. So, we Mr. Justice Scott, absent. apprehend, in respect to his deputies— their offices having expired with the Cited:-29-28 ; 34-259 ; 39-339. commission of the principal, they
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.