Powers v. State , 83 Miss. 691 ( 1903 )

Truly, J.,

delivered the opinion of the court.

Appellant was indicted for the murder of one Mills, was convicted of manslaughter, and appealed to this court, and the case was reversed and remanded for a new trial. See Powers v. State, 74 Miss., 777; s. c., 21 So. Rep., 657. On the second trial, upon the same indictment, he was again convicted of manslaughter and again appeals. While the assignment of error sets out many causes, five alone aro urged in the brief for appellant. They are as follows: First. The action of the court in permitting an order overruling a special plea of appellant, filed and disposed of at a previous term of the court, to be entered upon the minutes nunc pro tunc during progress of the trial. Second. The placing of the appellant on trial for manslaughter on the indictment charging him with murder, and upon which he had previously been acquitted of murder. Third. Error in the instructions for the state. Fourth. The remarks of the district attorney and assistant prosecuting attorney during the argument of the case. Fifth. The power of the special judge, and his right to preside at the trial, is challenged.

As to the first assignment of error, the facts are that, after the case had been remanded by this court, appellant filed what is termed a “special plea,” in which he set up the fact that he had been tried once upon the indictment presented against him, and which charged him with murder, and acquitted of the charge preferred by the indictment, and therefore could not again be placed on trial or required again to answer to the same indictment. This special plea was by the judge overruled at the term at which it was presented, but, by oversight, no order was placed on the minutes of that term showing the disposition of the plea. At the succeeding term of the court, when this case came on for trial, the attention of the judge not having been called to this omission, the defendant pleaded not guilty to the indictment, and the case proceeded. At the conclusion of the introduction of the testimony for the state the defendant moved the court to dismiss the case and direct a verdict of not guilty, because the special plea was still undisposed of, whereupon the court, after advising itself in the premises, ■ ordered that the disposition of the plea as made at the previous term should then be entered upon the minutes, which was accordingly done. We are unable to see upon what ground it can be reasonably contended that this action was error. The fact that, through some clerical omission, an order is not placed on the minutes of the proper term, is always subject to correction at any succeeding term. In addition to this, there is great force in the argument for the state, that where the attention of the court is not called to a special plea filed, but the defendant pleads in-bar to the indict„ment, this operates as a withdrawal of the special plea, and he cannot afterwards be heard to complain. Dyer v. State,, 11 Lea, 510. In the instant case, however, the appellant had the benefit of the decision of the court on his special plea, because, in fact, it had been considered and overruled, and, as we think, properly. Considered as a plea in abatement it is without merit and presented no legal ground for the abatement of the ■prosecution.

We are asked, by the second assignment of error, to vary the long and well-established rule of criminal procedure in this state, whereby one convicted of a constituent offense to the charge preferred by the indictment may, upon a second trial after the annulment of the first conviction, be again tried upon the same indictment for such lesser crime. In support of this assignment it is urged that it works a hardship upon the parties accused of crime to be forced to stand trial on an indictment charging a crime graver than the one for which they can then rightfully be convicted. We are unable to. see the force of the reasoning employed. One indicted of murder and convicted of manslaughter cannot again afterward be placed on trial for murder, the reason being that he has a constitutional guaranty that he shall not twice be placed in jeopardy for the same offense. Rolls v. State, 52 Miss., 391. But as to the offense of manslaughter, of which he was convicted, having, upon his own application, secured a new trial, he cannot be heard to say that he shall not again face a jury to answer that charge. Brought to its final analysis, the argument in behalf of appellant on this point 'is: On the first trial, having been acquitted of the charge of murder because he was proven guilty of manslaughter, it is urged that he cannot now be convicted of manslaughter because he is proven guilty of murder. We cannot assent to any such devious logic. It has been well said that the fact that the jury, in their mercy or through sympathy, did not convict defendant of the graver crime of which the evi-denee showed him to have been guilty, is no argument why the courts should not inflict adequate punishment for the lesser crime of which he was convicted. This has been repeatedly decided in this state. Lanier v. State, 57 Miss., 102.

The instructions for the state are not subject to the criticism to which they are subjected. The jury are told that they could not convict of murder because of the previous acquittal. Manslaughter is accurately defined, and the elementary principle is announced that threats, unaccompanied by an overt act, do not justify the commission of a homicide, and that it was for the jury to decide whether any overt act had been committed. It needs no citation of authority to show that appellant has here no ground of complaint.

The fourth assignment of error is based upon alleged improper remarks made by the district attorney and the lawyer who was engaged to assist him at the trial. The use of the language complained of is not manifested to us in any manner ■pointed out by tbe lav/. There is no special bill of exceptions, such as is required by law; tbe trial judge was not asked to interpose, and, according to his statement, no exception was reserved at the time the language is said to have been employed. The first mention of the alleged transgression on the part of the counsel for state is found in the motion for a new trial. The testimony taken on the hearing of that motion discloses a sharp conflict as to the exact expressions made use of in the course of arugument, counsel for the state averring that their entire argument 'was strictly within the bounds of legitimate comment upon the testimony, and that the expressions complained of were used in the discussion of testimony of witnesses for defendant, and based on evidence in reference to matters introduced, upon the express withdrawal of all objection by the counsel for defendant. The record fails absolutely to show any such distortion of the evidence, or such unwarranted abuse of privilege, as required or authorized the voluntary, unasked interposition on the part of the trial judge. The privilege and duty of counsel desiring to reserve exception to improper language used in argument, or. other incident occurring during the trial, is plain, and has been repeatedly pointed out by this court. We again say that it is the duty of counsel desiring to reserve exception to language used in argument to object at the time, and embody the alleged improper language and the action and ruling of the court in a special bill of exception taken during the progress of the trial or during the term, as required by law. Sections 734, 735, Code 1892; Cartwright v. State, 71 Miss., 82, s. c., 14 So. Rep., 526; Gibson v. State (Miss.), 23 So. Rep., 582; Albrecht v. State, 62 Miss., 516. If no special bill of exception is so taken, an assignment of error based on alleged use of improper argument will not be considered by this court.

The fifth assignment of error challenges the right of the special judge to preside at the trial, and is based on the following state of facts: The regular circuit judge of that district, having been counsel of defendant, was disqualified by § 919, Code 1892, from presiding at bis trial. An agreement was made between tbe attorneys in the case, selecting a special judge to preside on the trial, as provided by § 920 of the code. This agreement is evidenced by an order on the minutes of the court. Afterward, in order to obtain a continuance, it is admitted by counsel for appellant that they undertook to withdraw from the agreement, and accordingly the case was for that term continued, whereupon, before the next term of the court, the regular •circuit judge, under Code 1892, § 921, certified Ms disqualification to the governor, who appointed the same attorney who had been selected by agreement, and commissioned him as a special judge, and he presided at the trial from its beginning to its ending. It is conceded that the special judge failed to take the oath of office required by the constitution of judges before commencement of the trial, or at any time. It is argued that the fact that no oath was taken rendered all the acts of the special judge void, and it is further argued that § 920, Code 1892, by which it is provided that special judges may be selected by agreement in criminal cases, is itself unconstitutional because sec. 165 of the •constitution 1890, only applies to civil cases. The answer to this branch of the argument is twofold: If it be conceded that sec. 165, constitution 1890, does by its language refer only to civil cases, yet, as there is no inhibition in that section, it does not deprive the legislature of the power of passing laws authorizing the selection of special judges. Again, if § 920 of the code be unconstitutional, the question would still remain whether or not this would necessarily operate to render void the acts of a special judge who had been selected before the unconstitutionality of the statute had been judicially declared. Decision upon this point is not essential to the determining of the question here presented. The record affirmatively discloses the fact that the regular judge was disqualified to preside. It then became neces■sary, in order that the laws might be properly administered, that a special judge should be selected in some legal manner. A disqualification, so far as tbis case was concerned, existed as to the regular circuit judge of that district; a disqualification which, under the existing code provisions, could be met either by agreement or by the commission of the governor. It appears from the record that all parties treated the agreement as annulled, and therefore the special judge was duly commissioned as required by the constitution and the statute. This being so, it brings us at last to the sole question of whether the acts- of the special judge are void for the reason only that he failed to take, before entering upon the discharge of his duties, the oath prescribed by law. It is contended by counsel for appellant that, the oath of office being a constitutional requirement, it is indispensable to the legitimate exercise of any of the functions of office, and that the acts of such an incumbent cannot be upheld upon the ground that he is a de facto officer, for the reason, it is said, that he is not rightfully in possession and control of the office. This is a question on which a great variety of opinions has been1 expressed, and many authorities can be cited sustaining the contentions here made. We adopt, however, as the true view, that one in possession of an office, judicial or not, who exercises the functions- of the position, is to be considered, as to all persons dealing with him, rightfully in possession of the office, and that his acts as such are valid and binding, and this, too, whether he fails to take the oath required, or even though it should be judicially determined that the law under which he wasi appointed or selected was unconstitutional. The orderly dispatch of business, the validity which is implied of all judicial decisions, the necessity that official acts should not be set aside by any future happening, and that rights vested and causes adjudicated by any tribunal should not afterwards be disturbed and unsettled for any cause, all demand the recognition of the rule, and show the reason and wisdom on which it is founded. In the instant case a disqualification existed as to the regular circuit judge, and the special judge who presided herein was duly appointed and commissioned to fill such position, and by virtue of such appointment be assumed sncb position and discharged tbe ditties thereof. He was therefore not an usurper, but a do facto officer, and to bis acts as sucb tbe law attaches validity. “Where an office exists under tbe law, it matters not bow tbe appointment of tbe incumbent is made, so far as the validity of bis acts are concerned. It is enough that be is clothed with tbe insignia of office and: exercises its powers and functions.” Fields, J., in Norton v. Shelby Co., 118 U. S., 178. Tbe failure to take the oath required, or to conform to some precedent condition, or to comply with some formality, will not affect tbe validity of bis official or judicial acts. State v. Miller, 111 Mo., 548, 20 S. W., 243; State v. Carroll, 38 Conn., 449, 9 Am. Rep., 409; State v. Gamble, 108 Mo., 500, 18 S. W., 1111; Cocke v. Halsey, 16 Pet. 71, 10 L. Ed., 891; § 3065, Code 1892; Clark v. Com., 29 Pa., 129; Vicksburg v. Lombard, 51 Miss., 111. Therefore, it being undenied that a disqualification did exist, and that tbe necessity for tbe appointment of a special judge arose therefrom, and that the special judge was duly commissioned to proceed in this particular case, and did assume and discharge tbe functions, duties, and powers of tbe position, we bold that bis acts were not invalidated by bis failure to take the prescribed oath, but are as effective as if tbe regular judge of tbe district bad presided. ■

In deference to tbe earnestness with which tbe views of-the counsel for appellant are pressed, we have given each and every assignment of error careful and painstaking consideration, and find no error. If tbe testimony for tbe state be true, appellant has upon him “tbe guilt of premeditated and contrived murder,” and we think has no cause to complain of the mercy shown him by tbe jury.

Affirmed^