The Ouachita telegraph. [volume] (Monroe, La.) 1865-1889, 1873-08-09
THE STATE VS.. zACk MCFARLAND.
Appeal from 10th District Court, Parish
of CaLdo, Justict Wyley Dissenting.
JUSTICE wYLEY'S OPINION.

In January, 1878, the defendant,
Zack Mcfarland, was indicted for muir
der. He was arrested by the Sheriff of
the parish of Caddo, and on the 10Th
day of March he applied to the Dis
trict Judge of said parish for a writ of
hobeos corpus, alleging in his petition
that he had been indicted for murder;
had been arrested by the Sheriff, and
was lodged in Jail. He also avcrred
that he was not guilty of the crime
charged, but Mt the time he shot the
said Aleck (James Alexander) the
act of killing and numbering his, petit
TONER'S, brother, and that petitioner
shot and killed the said Aleck to pre-
vent the killing of his brother afore-
said. He further alleged that he had
had no preliminary examination and
no opportunity to vindicate his inno-
cencc, and that his Imprisonment was
illegal and unjust. The court granted
the writ, tried the case, and on 10th
March, 1878, finding that the accused
was entitled to bail, "ordercd that he
be released from custody upon giving
bond with good security i'll the sum OF
three thousand dollars, conditioned ac-
cording to law, and The iMc,lV or ou,y
deputy be authorized to take and t,1,1,,Ore
sttid doist1."
On the same day, to-wit: 10th March,
1873, the accused gave tho required
bond in favor of the Governor of the
State Of Louisiana for $1,000, with A.
ii. Leonard, John w. Lawton, and
John Lake as sureties. This bond was
approved by the District Judge.
On 3rd day of June, 1878, tho bond
was duly forfeited and judgment was
rendered against the principal and his
securities in solido for the. amount
thereof, $4,000 90. The sureties then
moved to set aside the Judgment on the
following grounds:
l. There was no indictment against
Mcfarland that he was legally bound
to answer, because it was not found by
a legal Grand Jury; consequently there
was no warrant for his arrest and his
detention and Imprisonment were ille-
gal.
3. If the indictment be valid, Nc
Farland was not legally bound to APP
pear before the court ut this term, be-
cause the law prohibits him from re-
cognizing usurpcrs in office, and be-
cause the Offices of clerk of said court
and sheriff of said parish are now
usurped by S. w. Morrison and J. w.
Pickens, pretending to act without au-
thority of an election declared by re-
turning board constituted by law, and
without authority of Il commission
from the Governor of the State.
3. That the bond was not taken by
any one legally authorized to take the
same, and it is therefore null and void.
That the court was without authority
to order Pickcns or any one acting as
deputy for him to take the bond of said
Mcfarland and they were without au-
thority aud prohibited by law from so
doing or performing any other act as
sheriff.
They also allege that no Judgment
can be taken on the bond or any other
action be taken mt this term of the
District Court, because the clerk and
sheriff are without authority to act as
aforesaid. Considerable testimony was
adducCd for and against the rule or
motion; the court, however, OVcrrulcd
it and Leonard, Llwton and Lake, the
sureties on the bond, have appealed.
Morrison and Pickens, the clerk and
sheriff, were both commissioned by II.
G. Warmoth, Governor, on the 4th
day Of December, 1879, and it is cad
mittcd that these officers have taken
the necessary oaths of Office and filed
thcir bonds in accordance with law
1t is also "admitted that j. w. Pickens
obtained. peaccablc possession of the
Office of Sheriff of Caddo parish on 23
December, 1872, and on that day en-
tered peaceably on tho duties of said
Office, and has been continuously in
possession thereof ever since dischnrg
ing the duties of said office"
1t is proved that S. w. Morrison has
been the acting clerk of the tenth
District Court since 23rd December,
1878, and has continued iu Tie open sUt-
disturbcd ana continuous discharge Of
the dutics Of sail CDice crc,' since. Also
that his immediate predecessor, Samuel
c. Wright, voluntarily delivered to
him possession of the clerks Office, the
books, records, &c, &c.
The question is, arc the official acts
of these officers valid? Are they bind
ing as to third persons, or are they alb
solutc nullities? Did tho commissions,
the oaths, the bonds, and the open,