Willingham v. State , 21 Fla. 761 ( 1886 )

Mb. Justice Raney

delivered the opinion of the court:

The plaintiff in error was indicted, at a special term of the Circuit Court held in Polk county in July, A. D. 1884, for the murder of "William McLaughlin in September, A. I). 1880. He was tided at the same term, and convicted of murder in the first degree, but recommended by the jury to the mercy of the court, and was sentenced to imprisonment in the State Penitentiary at hard labor for the term of his natural life. There was a motion in arrest of judgment and for a new trial, but it was overruled prior to the sentence. The errors assigned, and the proceedings upon which they are based, are set forth in the opinion.

I. The prisoner pleaded in abatement of the indictment that the grand jury which found it was drawn from the box by a deputy of the Clerk of the Circuit Court, instead of the clerk in his own person, and that hence the jury was illegal. This presents the question whether or not under the statutes of this State the drawing of a grand jury can be done by a deputy clerk. The Board of County Commissionei’s select from the list of registered voters, and make out a list of three hundred (or the next highest number possible) persons properly qualified to serve as jurors. They are to be such persons only as the Commissioners know or have good reason to believe are of approved integrity, fair character, sound j udgment and intelligence. This list is certified and signed by the Chairman of the Board, delivered to the clerk, and by him recorded in the minutes of the Board. See. 7, page 621, McC’s. Digest. It is also provided (§8) that on receiving such list “ the clerk of the Circuit Court shall write the names of the persons contained thereiu ©n separate pieces of paper so that the names written therpon shall not be visible, and shall deposit such pieces of paper in a box so constructed that it may be tightly closed.” This section further provides that at least fifteen days before the sitting of any regular term of the Circuit Court at which a jury shall be required, ‘‘the Clerk of the Circuit Court, in the presence of the sheriff or deputy sheriff and County Judge, or, in his absence, a Justice of the Peace of the county, shall proceed to draw from the box the names of not less than fifteen, nor more than eighteen, persons to serve as grand jurors at such court.” This drawing is the duty under consideration. It is also provided that “ the drawing of such jurors shall be publicly made in the court house of each county and the time and place of such drawing shall be advertised ten days before the day of said drawing by written notices posted at three public places in said county, and the sheriff shall proclaim the meeting and its purposes at the door of said court house on the the day of drawing said jurors.” By another section the Judge of the Circuit Court is given power to order the clerk to draw grand and petit jurors for a special term in the same manner. §11, p. 622. The drawing in question was for a special term.

There is nothing in the duty or function of drawing the pieces of paper or “ names ” from the box that is judicial in its character, or involves the exercise oí discretion, or personal skill. Nothing could be more ministerial. The measure of ability or skill which its performance requires is the smallest. The language of the statute does not indicate that the personal judgment of a clerk himself is relied on. Ordinary intelligence and simple honesty are all that are required by the nature of the duty.

There is no doubt as to the power of a Clerk of the Circuit Court to appoint a deputy. Section 3, of page 174, of the Digest, provides that he “ shall have the power * * of appointing a deputy or deputies for whose acts, as such,” he “ shall be held liable.” This section says nothing as to what the powers of the deputy shall be.

In Comyns’ Digest, title, Officer, (D. 3,) it is said a deputy has power to do every act which his principal might do, * but that a deputy cannot make a deputy, as this imports an assignment of all his authority, which is not assignable. In Bacon’s Abridgement, Officer, (L,) it is laid down that offices of inheritance for years, and those which require only a superiutendency and no particular skill may regularly be exercised by deputy. A Sheriff, says the same authority, though he is an officer made by the King’s letters patent, and though it be not said that he may execute his office per se vel sufficientum depuiatum suum yet he may make a deputy, which is the under sheriff, against whom action may be brought by the parties grieved. * * A judicial officer cannot, it is said, make a deputy unless he hath a clause in his patent to enable him ; because his judgment is relied on in matters relating to his office which might be the reason of the making of the grant to him; neither can a ministerial officer depute one in his stead if the office be to be performed by him in person ; but when nothing is required but a superintendency in the office, he may make a deputy. Ibid. Erom the same authority we learn that a coroner could appoint a deputy to do ministerial acts, but not those of a judicial character. Bouvier says that in general, ministerial officers can appoint deputies unless the office is to be exercised by the ministerial officer in person; and where the office partakes of a judicial and ministerial character, although a deputy may be made for the performance of ministerial acts, one cannot be made for the performance of judicial acts; a Sheriff cannot, therefore, make a deputy to hold an inquisition, under a writ of iuquiry, though he may appoint a deputy to serve a writ. Iu general, a deputy has power to do every act which his principal might do, but he cannot make a deputy. Bouvier’s Law Dictionary, title, Deputy.

In McKinnon vs. McCallum, 6 Fla., 876, it was held that a deputy Clerk of the Circuit Court could administer an oath. No reference is made to the statute expressly authorizing a deputy Clerk to do this, and it would seem that his power was recognized as existing independent of the statute. In Iowa, the Clerk of the District Court was given power to take acknowledgements of deeds. He was also authorized to appoint a deputy to discharge the duties of the Clerk. It was held in Abrams vs. Ervin, 9 Iowa, 91, that the deputy could take an acknowledgement of a deed. In the opinion it is said that where the duties of a public officer are of a ministerial character they may be discharged by deputy, but that those of a judicial character cannot be so discharged, and that the Clerk is a ministerial officer, and when the law gives him power to appoint a deputy, such deputy, when created, may do any act that the principal might do. McRaven vs. McGuire, 9 S. & M., 34; Beaumont vs. Yeatman, 8 Humph., 542; Hope vs. Sawyer, 14 Ill., 254. In Ellison vs. Stevenson, 6 T. B. Monroe, 271, it is held that a deputy Clerk may allow the claims of witnesses and tax costs.

It seems to us that as a general rule all purely ministerial functions of the clerk can be performed by a deputy, and that such is the character of the drawing in question. Of course, it would be competent for the Legislature to provide, either expressly or by implication, that certain purely ministerial duties should be performed by the Clerk in person. It is contended that the language of this act shows such an intention in the fact that the eighth section expressly provides that the drawing may be in the presence of the deputy Sheriff, as one of the witnesses, and does not provide expressly that the deputy Clerk may do the drawing. We think the true construction to be placed upon the use of the term “Deputy Sheriff,” is that the purpose of the Legislature was to settle the doubt as to whether, without such term, a deputy Sheriff would be an authorized witness of the drawing. This is a more reasonable construction than to hold its use to be a limitation of the general power of the deputy of another officer. There is no express provision in any part of this statute for the performance, by a deputy,.of any other function of the Clerk; no such discrimination exists in it. All the duties are imposed upon the officer, and show an intention that they should be considered as official, and not “ personal” acts of the Clerk.

Any authority seeming to conflict with our conclusions will be found, on careful examination, to involve the exercise of a discretion or personal judgment. The importance of a duty does not of itself change the real character of the duty, nor the rules of construction.

We do not mean to say there are no duties which cannot he performed except by the Clerk in person. We are dealing only with the question before us.

II. The second assignment of error is as follows : “ The court erred in instructing the jury, ‘ you should most carefully examine every fact and circumstance surrounding the case, and if you have no reasonable doubt in your mind as to the defendant’s guilt you should convict him of murder in the first degree ;’ ” and the third assignment is that the court erred in instructing the jury: “but before you can find the defendant guilty of murder in the second or third degree, or of manslaughter in any degree, you must be satisfied that such alleged killing occurred in Polk county, Florida, within two yearn before the finding of the indictment.”

These two assignments are considered together by counsel for the plaintiff in error. He says in his brief that the indictment charges the killing to have been done on September 4th, 1880, and the evidence shows it to have occurred on the 12th day of that month, and that the indictment was found on the 7th day of July, 1884. He argues that more than two years having elapsed between the date of the homicide and the finding .of the indictment, the offences of murder in the second and third degrees, and manslaughter, were barred, and no conviction could have been had of a less offence than murder in the first degree; but that this fact did not exclude from the jury whether the homicide was one of such lesser offence, or justifiable homicide. He contends, however, that the charge of the Judge did in fact withdraw from the jury the consideration of a lesser offence than murder in the first degree.

The charge of the Judge defines the different degrees of murder and manslaughter as they are defined in our statutes. It then, in a separate paragraph, instructs the jury that if they find from the testimony that the prisoner, in the county of Polk, and State of Florida, unlawfully made an assault upon McLaughlin with a pistol, with a deliberate and premeditated design to effect McLaughlin’s death, and that in pursuance of such deliberate and premeditated design on the part of the defendent to effect McL.’s death, he shot with a pistol and inflicted on McL. a wound, of which he, McL., subsequently died, and that such alleged killing was not murder in the second or third degrees, or manslaughter in some one of the degrees thereof, or was not excusable or justifiable, they should find him guilty of murder in the first degree. It then defines premeditation, and then comes, in the same paragraph, the sentence copied into the “ second assignment of error,” and it is followed by instructions to acquit if there is a reasonable doubt of the prisoner’s guilt. It is perfectly clear that in this paragraph the Judge is charging upon the offence of murder in the first degree, and yet. the words we have italicised show a careful guard against withdrawing from the jury the consideration of the lesser offence than murder in the first degree. Considering the whole paragraph it is plain that the language quoted in the assignment of error is to be road in the light of that italicised, and must have been understood bjr the jury as referring to “ guilt ” of the particular offence under discusssion, murder in the first degree, as distinguished from the lesser offences, and from justifiable and excusable homicide. Moreover, in the next paragraph, the Circuit Judge charged that if the jury found that the prisoner killed McLaughlin, and the alleged killing was not murder in the first degree, they could find him guilty of murder, or manslaughter in any of the degrees thereof, if the testimony warranted it, and then as a part of the same sentence follows the language quoted in the third assignment of error.

It is hardly just to a charge to take a sentence from one paragraph and a part of a sentence from another, and make these the basis of an exception, independent of other parts relating to the same subjects. Smith vs. Bagwell, 19 Fla., 117.

It is alleged that the sentence quoted in the second assignment is in conflict with the decisions of this court. Dukes vs. The State, 14 Fla., 499, and Brown vs. The State, 18 Fla., 472. No attempt is made to show wherein such conflict exists. Ve have read the charge carefully and it is sufficient to say that considering it as a whole we see no conflict with the doctrines of either of the decisions.

III. The fourth assignment of error is that there was-error in instructing the jury: “ and you are furthur instructed that before you can acquit the defendant on account of intoxication, or that at the time of the alleged killing he was laboring under an aberration of mind from any other cause, you must be clearly satisfied from the testimony that the defendant was at the time in such a state of mind that he was not capable of forming a design or intention, and that he was not then capable of judging right from wrong.” It is urged that this instruction is not law; that it is too abstract, and not sufficiently explicit to put the jury in possession of the law governing insanity from drunkenness or other cause.

This is, however, not all that was charged by the Judge on the subject. He also instructed them, at the request of the prisoner’s counsel, as follows: “If the jury believe from the testimony, ascertained from the actual words of the witnesses themselves, or from the acts and doings of the defendant by the witnesses related, as to his conduct in the boat and in the water, and you believe from the use of liquor or the shock of falling into the water, or a mortal fear of drowning, or from any other cause, the defendant was laboring under a mental delusion, or a temporary aberration of mind, and that at the time of the shooting he did not know right from wrong as to the shooting, the defendant is not punishable by law, and you must find him not guilty, as an insane man, under the law, cannot commit any offence whatever. If the jury have any reasonable doubt as to the sanity or insanity of the defendant at the time of the shooting, the defendant is entitled to the benefit of such doubt, but the jury must be satisfied beyond a reasonable doubt as to the actual condition of his mind at that time, and they must be satisfied that his mind was in such condition that he did not know right from wrong to ■entitle him to an acquittal on that ground.” The Judge also charged that every man is presumed sane until the contrary is shown by competent proof.

There is in the bill of exceptions no testimony to the effect that the prisoner was a drunkard, or had been drinking, or was at the time of the shooting, or even the morning after, under the influence . of liquor; nor is there any evidence as to any insanity, aberration of the mind, or mental delusion, or from which either could, in our opinion, be legitimately or reasonably inferred, and the jury, by their finding, having shown that such was their opinion of it. There is unquestionably no testimony which could have raised a reasonable doubt as to the prisoner being sober, or as to his sanity, or freedom from mental aberration or delusion. There is nothing in the testimony through which the instruction excepted to, taken alone, or in connection with that given at the prisoner’s request, and that as the presumption as to sanity, could have misled the jury, or have operated injuriously to the prisoner, even admitting there is any inaccuracy in it. Considered with reference to the questions of intoxication and insanity, the verdict is as favorable to the prisoner as could have been rendered, in view of the testimony. Any error in the charge is not material, but is error without injury, and not ground for reversal. Metzger vs. The State, 18 Fla., 481; Brown vs. The State, 18 Fla., 472. This is so plain that we feel it is unnecessary to carefully review all the vexed authorities, and lay down a precise rule upon the questions involved. We feel that the fact that the Circuit Judge charged at all upon the questions is attributable, in a very great degree, to desire to avoid a possibility of any injustice to the prisoner.

IV. The fifth error assigned is that the court refused to stop Mr. Gf. A. Hanson, one of the counsel for the State, from stating to the jury “ that the defendant’s counsel relied on his money and standing to secure his acquittal and the sixth error alleged is, the court erred in not stopping said counsel from stating in his argument to the jury “ that if they did not convict the defendant, they, themselves, would deserve to be swung up around the Temple of Justice.”

No objection to the latter of these remarks was made, so far as the record shows, at the time it was uttered, nor until after the verdict; and though the bill of exceptions shows that counsel for the prisoner “ excepted ” to the former remark, no refusal to stop counsel for the State or other action of the court appears to have been taken, or to have been requested. If counsel for the prisoner thought they were of sufficient importance to ask the interference of, or a ruling from the Judge, or even an admonition from him to the jury that no weight should be attached to them, the record does not show it. In the absence of such a showing we must conclude that there was an abandonment of the objection even as to the remark as to reliance “upon money and standing.” Godwin vs. Bryan, 16 Fla.. 396 ; Laber vs. Cooper, 7 Wall., 570. Rot until the motion for a new trial was made was any action of the court requested or taken. This is too late. The act of 1883, (Chapter 3431,) permitting a postponement of an exception to a charge to a jury till after verdict, relates to nothing else.

The old rule that a party cannot rely with confidence on the strength of his case, take no exceptions to matters as they occur, and afterwards claim the right either through a motion for a new trial, or otherwise, to have matter already acquiesced in and accepted by him, reviewed in an appellate court, stands otherwise unmodified. Coker & Schiffer vs. Hays, 16 Fla., 368 ; Godwin vs. Bryan, 16 Fla., 396 ; Southern Express Co. vs. VanMeter, 17 Fla., 783 ; Potsdamer vs. The State, 17 Fla., 895 ; Jenkins vs. Merritt, 17 Fla., 304 ; Tuten vs. Gazan, 18 Fla., 751.

There is really no such thing as an exception to a remark of counsel as a matter to be reviewed in this court. It reviews the action of the lower court, and where counsel have any objection to anything they should get a ruling from the Judge of the latter court, and if it is adverse, should except to such ruling and have it noted, and bring the ruling, with the circumstances on which it is based, and the exception as noted, here for this court’s review of, and decision upon, such ruling. Where an exception is to ruling of the court, it is indispensable that the ruling should be stated, and it should also be alleged that the party then and there excepted. Pomeroy’s Lessee vs. Bank of Indiana, 1 Wall., 592. In Laber vs. Cooper, 7 Wall., 571, in speaking of the testimony of a witness,it is said it appears that the admission of a part of it was objected to by defendant, but it does not appear that the objection was overruled and exception taken. It only appears that the testimony was admitted after the objection was made, non constat, but that the objection was waived, or the decision acquiesced in.” See also Mutual Life Insurance Co. vs. Snyder, 3 Otto, 893 ; Gallaher vs. The State, 17 Fla., 370. The record before us does not show that the Circuit Judge refused to arrest the counsel in his remarks, or to otherwise act.

We are referred by counsel for plaintiff in error to the cases of Newton vs. The State, 21st Fla., and The State vs. Balch, 31 Kansas, 465. There is nothing in Newton vs. State inconsistent with the above views, but in so iar as that case gives any intimation as to the proper practice in such matters it sustains our conclusions. In one of the instances in that ease where objectionable remarks of the State Attorney were passed upon, the court, in answer to the objection of prisoner’s counsel that the State Attorney was stating that which was not in evidence, said: “ He is only using it as an argument,” thus overruling the objection, and the prisoner’s counsel said : “ Well, I except to that style of argument being used,” and this was incorporated into the bill of exceptions and treated as an exception to the ruling of the Judge. In the other instance in the same case, although this court remarks that facts not in evidence should not be stated or discussed, yet it observes that “ the attention of the court does not appear to have been called to the remarks, * and no exception appears by the bill of exceptions to have been taken.” We think no notice would have been taken of the second instance- by this court, but for the fact that there was the former in which a ruling and exception appears, and the further fact that the case had to go back for a new trial on the “former” an! other grounds and the court desired to make known its views in aid of proceedings in a new trial.

Tlie case of Balsh vs. The State of Kansas, is as follows: In that State the statute provides that a defendant in a criminal cáse may testify in his own behalf if he chooses, and further, “ that the neglect .or refusal of the person on trial to testify shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting the case, nor shall the same be considered bj’ the court or jury before whom the trial takes place.” The prosecuting attorney remarked that Balsh had failed to go on the witness stand and deny that he had not signed or circulated the libelous paper which he knew to be in circulation and to bear his name. The District Judge informed the prosecuting attorney that his remark was improper, and told the jury to pay no attention to it, and that under the law defendant had a perfect right to refrain from testifying without having the failure to testify commented on or even alluded to by the State, and that the jury would violate their duty if they considered at all Balsh’s failure to testify. The prosecuting attorney thereupon stated to the jury that he had forgotten, and had probably gone beyond what he should have done. After referring to these remarks and admonitions, the Supreme Court says : “But under the authorities the evil done by such an infringement of law—an infringement of law by the prosecuting officer of the State—cannot be remedied or cured by any mere instruction from the court. The only complete remedy, if the defendant is convicted, is to give him a new trial.” In Indiana, under a somewhat similar statute, a somewhat similar view is taken, the court deeming any violation of the statute as error of law. Long vs. State, 56 Ind., 186. See also Hatch vs. State, 8 Texas Ct. Ap., 416 ; State vs. Graham, 62 Iowa, 111.

In Illinois, the statute permitting the defendant in a criminal case to testify, provides that his neglect to testify “ shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” In Austin vs. State, 102 Ill., 261, it was held that “ any allusion to or comments by the prosecution in a criminal case on the fact that the defendant has not testified in his own behalf, especially when allowed by the court over the defendant’s objection, is such a violation of the letter and spirit of the statute, and such an error, as to require a reversal of a judgment of conviction, where the proofs of guilt are not so clear and conclusive that the court can affirmatively say the accused could not have been harmed for that cause.” See also Com. vs. Scott, 123 Mass., 239 ; Com. vs. Harlow, 110 Mass., 411; People vs. Tyler, 36 Cal., 522.

The Kansas case refers to those from the other States. In the Kansas, Indiana, Texas, and it would seem, the Iowa, eases, violation of the statutes is construed or treated as error of law from which a writ of error or appeal may be prayed as of right, but in the other cases there was error in the action of the lower courts. These cases do not, however, involve the question we are dealing with. In Indiana, moreover, in the case of Morrison vs. State, 76 Ind., 335, where the question was, like that before us, one of the abuse of the right of argument, it is held that if the argument goes beyond the evidence objection must be made at the time and the specific grounds of objection stated, and that none not so stated will be available on appeal. In Newton vs. State, this court, in concluding its observations on the first remarks of the State Attorney objected to, says: ' “ The court, in the exercise of a sound discretion, should have prevented or stopped them, or advised the jury that they were not to be considered by them,” and in Rorth Carolina- the Supreme Court, in State vs. Underwood, 77 N. C. Repts., 503, a case of similar character,, where the District Judge trying the eases had remarked u there is no evidence of this, and this case must be tried on the evidence,” say: “ this was all that we see he should have done, and whether he should have emphasized his language or reproved the counsel was a matter of sound discretion with the Judge.” We have seen no case where-it is held that an abuse of the privilege of argument is held error of law from which a writ of error or an appeal may be prayed as of right in the absence of a statute like-those in Kansas, Indiana and Texas. In Potsdamer vs. The State, 17 Fla., and So. Ex. Co. vs. VanMeter, Ibid, there-is consideration of the question of when the violation of a statute is such error.

Our conclusions are consistent with the practice of this court in all cases where the error is not one apparent on the record., as in Hinote vs. Simpson & Co., 17 Fla., 444; Jones, Varnum & Co. vs. Townsend, 21 Fla.

We do not mean by anything we have said to intimate-that it would not have been perfectly proper for the Judge to have checked the counsel and admonished the jury against considering the remarks. All the authorities are to this effect.

V. The 8th, 9th and 10th assignments are that the verdict is contrary to law, and to the evidence, and that the court erred in overruling the motion for a new trial. These assignments are practically, if not expressly, abandoned. There is clearly nothing in them.

YI. The only remaining assignment is that the indictment upon which the prisoner was tried was never made a part of the record by the Clerk of Circuit Court placing his file mark on the same. Ro such point appears to have been made in the lower court. It comes too late. The record. ■shows that the indictment was presented by a grand jury in •open court and ordered by the court to be filed^ that there was a plea in abatement on another ground, which was overruled, and then a plea of not guilty. The mere absence of the file mark under such circumstances is an -omission from which no practical advantage can .be derived. The file mark is but one evidence of a paper having, been filed. The objection should have been made, for what it was worth, in the lower court. Collins vs. The State, 13 Fla., 659 ; Bass vs. The State, 17 Fla., 685 ; Gallaher vs. The State, Ib., 370; Francis vs. The State, 6 Fla., 306.

[The opinion in this case was filed at the June Term, 1885, but it was ordered, on application of plaintiff in error, that he have until the January Term, 1886, to file a petition for a rehearing. ’ At- the latter term such petition was filed and rehearing denied.—Reporter.]

The judgment is affirmed.