
    Douglass vs. The State.
    The State can employ, or the courts appoint counsel to do the business of the State, if the regular officer is unable to do so, or if there be none.
    The absence of the regular attorney general will be presumed, when the record shows the appointment of one for the term, although the record docs not show the absence of the attorney general, and an indictment signed by such appointee will be good as to that.
    When the property of the defendant in the execution is in the house of a third person, or in the smoke house within the curtilage’ of such third person, a demand for admittance, by the officer holding the execution, and a refusal upon the part of the person holding the property, is necessary to justify the officer in breaking the door and entering the house or smoke house.
    When there are five courts in an indictment for a riot and breaking into a smoke house or out house by an officer and others, proof that the smoke house was within the curtilage, that the lock was broken otf in a riotous manner, without any demand of or refusal to admit, is competent and necessary testimony under the count for a riot, and under either count is admissible in aggravation of the offence, notwithstanding neither count charges the breaking into a house within the curtilage.
    An execution will not justify an officer in going to and breaking tl^ door of a third person’s house, in a disorderly and riotous manner, in o™ der to levy it upon property belonging to the defendant in the execution; and the fact that the property did not belong to the defendant in the execution is an aggravation, and a very serious one, if he. was aware of the fact, or had good reason to believe it.
    The plaintiff in error was indicted at the July term of Madison circuit court, with six others. The indictment contained five counts; 1st, for a riot at common law; 2d, riot and assault upon James Kincaid, the prosecutor; 3d, riot and assault upon the body of Elizabeth Kincaid; 5th, for riotously and violently, &c. breaking open a smoke house, or out house door, and taking therefrom the ne-groes of the prosecutor. The proof shows, that defendant, and the other persons named in the indictment, came to the premises of the prosecutor, James Kincaid; that Kmcaid met them at the gate and told them to depart, but . . , ° , . * ... they still persisted on entering the premises, and did so with much violence and tumult; that Douglass had an execution against one Sawyers, which he insisted to levy upon some negroes in the possession,of Kincaid; Kin-caid informed him that the negroes belonged to him, which the proof shows to be the fact. The negroes were locked up in the smoke house of Kincaid, which was within the enclosure around the dwelling house of Kincaid, and attached thereto by the fence; that Douglass passed from the house to the smoke house, where Kin-caid forbid him to enter,'but Douglass, with the aid and assistance of the others who were with him, and with a man they had brought with them, with great violence forced the smoke house door, broke the lock, and took the negroes out; that it was done in a noisy, tumultuous, and riotous manner, without any demand of admittance beforehand; that, in doing this, defendant, Douglass, or some of those who were assisting him, assaulted and fought Kincaid, the prosecutor, and Elizabeth Kincaid. The court charged the jury “that to constitute a riot, three or more must do an unlawful act, or a lawful one in a riotous or unlawful manner; all concerned, acting, or aiding, or ready to aid by lying -in wait, &c. with intent to break open a dwelling house or house, adjoining, being in the enclosure and part of the mansion house and dwelling, with force, and in a riotous manner, will constitute a riot, unless justified. It will be no justification to break open, as above, a house to levy an execution on the property of the owner himself, but it will be so to levy on the goods of another secreted there, after demand of the owner of the house and refusal.” The jury found the defendants guilty. Plaintiff in error moved for a new trial, which was refused, and to the opinion of the court refusing to grant him a new trial, he excepted. • The indictment is signed by Robert Hughes, as attorney general. A. TB. Bradford was the attorney general for the district. The following order appears upon the record in said court: “Robert Hughes was this day appointed prosecuting attorney for the present term; whereupon he took the oath prescribed by law.” The defendant moved to arrest the judgment, assigning as a reason for said motion, that the indictment was not signed by the proper officer. The circuit court overruled the motion in arrest of judgment, and gave judgment upon the finding of the jury. From which several decisions of the court, in refusing a new trial, and in overruling the motion in arrest of judgment, the defendant prosecuted a writ of error to this court.
    
      W. Stoddart and M. Brown, for the plaintiffs in error.
    The sheriff, for the purpose of making a levy, may break open an out house not annexed to the dwelling, particuly if they are the goods of a third person conveyed there to avoid execution. 4 Com. Dig. title Execution, eh.. 5,- p. 16 John. Rep. 287, Haggerty vs. Webber: 2 Coke, 261, notec.
    The solicitor’s name is not signed to the 'indictment. It does not appear that “Robert Hughes, solicitor, &c.” who signed the indictment, was ever appointed and sworn as the law requires.
    
      A. B. Bradford, Attorney General, for the State.
    The counsel for the State relies upon the proof set forth, and the general verdict thereon, and insists, both as to right of property in the negroes, and the force used by defendant, the evidence is not doubtful, but clear against plaintiff in error, and in either case this court will not disturb the verdict.
    1. The defendant is guilty of forcible seizing and taking the negroes in question out of the possession of Kin-caid, having no title to them, or authority to seize them, which is indictable. See 2 Hay. 14: 2 Tenn. Rep. 97: 3 Yerg. Rep. 5S8.
    2. The defendant and others are rioters by the proof at common law, even if they had authority to make the seizure; lie leading the charge at sunrise, with the con- , , ’ , ° , , ' . .. - stable and the posse at his heels, carrying his weapon ol death in a menacing attitude.
    3. Unless the negroes belonged to Sawyers, and for this there is no pretence, the defendants are guilty, generally, as charged in the hill of indictment. See 5 Coke, 93: Semagne’s case, 6 Bac. 170.
    The smoke house spoken of is, to all intents, part and parcel of the dwelling house; proven to have been in twenty yards thereof, and shown to have been within the •curtilage. 3 Inst. 64: 1 Hay. 242. '
    As to the motion in arrest of judgment, if any one of the counts is good, the court is bound to pronounce judgment against the defendant, as the finding was general. 1 Chit. Grim. Law, 639, 249: 1 Cowp. 276: 1 Salk. 3S4.
    The act of 1817, ch. 139, sec. S, enacts, that if at any one term of the circuit court of any county in this State, the attorney general appointed for that district cannot attend, or in case of no such appointment, the court may appoint any attorney of the court for that purpose. See. 2 Scott’s Rev. 396: See Act of 1819, ch. 52: 2 Scott, 497.
   Catron, Ch. J.

delivered the opinion of the court.

A. B. Bradford was attorney general, but the indictment is signed by Robert Hughes, appointed by the court to prosecute for the term. It is now moved to arrest the judgment because the indictment was not preferred by the proper officer.

The 5th article of the 2d section of the constitution provides, that the Legislature shall appoint an attorney or attorneys for the State, who shall hold their office during good behavior.

The act of 1817, ch. 139. sec. 8, provides, that when their is no solicitor in attendance, any attorney of the court appointed for that purpose may prosecute, and attend to the State’s business. That the State can employ or appoint counsel to do her business, if the regular officer is unable to do so, or there be none, cannot he questioned. But it is insisted, the order appointing Mr. Hughes does not show the court had jurisdiction. “Robert Hughes was this day appointed prosecuting attorney for the present term; whereupon he took the oath prescribed by law,” are the word's of the order.

The court could not else than know that the attorney general was absent, and it was its duty to appoint a deputy for the time being. The orders of superior courts are general, and the existence of the facts to authorize them are presumed in cases like the present. Fields vs. the State, Mar. and Yerg. Rep. 176.

The next objection is, that the court misdirected the jury. Douglass, with two constables, with several others, in a threatening manner, took from the smoke house of Kincaid some of his negroes, claiming the right to do so by virtue of executions against Kincaid’s son-in-law. The smoke house was within the curtilage of the mansion house. The court charged the jury, that the house could not be lawfully broken open with violence, even had the negroes been subject to the executions, without first demanding admittance from Kincaid, and a refusal to open the house. This is the law in cases where the property of a defendant to an execution is in the house of a third person; a demand for admittance, and refusal, is necessary to justify the offence. 5 Co. 93, a: 4 Com. Di. 232, (Execution, C, 5.)

The fifth count in the indictment charges the riot to have been committed by violently, &c. breaking open a smoke house or out house, and taking therefrom the ne-groes of the prosecutor; and it is insisted, that it must be taken the smoke house was an out house, and no demand for permission to enter it necessary. There are five counts in the indictment to which not guilty was pleaded,, and the defence rested on the authority furnished by the legal process. To show that the conduct of the officer and the defendant was illegal, notwithstanding the authority, and as rebutting evidence, the State proved the lock was broken off of the.smoke house door with a pole axe, in a violent, riotous manner, and that the smoke house was part of the curtilage of Kincaid.

This proof was competent and necessary to sustain the first count in the indictment, and we apprehend,-as proof in aggravation on either count, it was properly heard, notwithstanding the fifth count alleges the negroes were taken from an out house.

We think that in reference to the pleadings and facts proved, the charge of the court could not have been more critically accurate, and that the judgment must be affirmed. The executions furnished no justification to the conduct of the defendant and those associated with him, had the negroes belonged to the defendant in the executions; the fact that they did not, is an aggravation, and a very serious one, if the defendant was aware of the fact, or had good reason to believe it.

Judgment affirmed.  