Taylor v. State , 49 Fla. 69 ( 1905 )

Cockreij,, J.

(after stating the facts.)

The sufficiency of the first plea in abatement is strenuously urged before us. Please of this character are most strictly construed against the pleader; in the language of the old books they must be certain to certain intent in every particular. They must leave “on the one hand, nothing to be supplied by intendment or construction; and on the other, no supposable special answer unobviated.” Miller v. State, 42 Fla. 266, 28 South. Rep. 208, 1 Bishop’s New Crim. Proc. section 327; State v. Duggan, 15 R. I. 412, 6 Atl. Rep. 597, and cases cited. Testing the plea by this rule, and assuming the pleader has made the strongest case possibly consistent with the facts, we must proceed upon the theory that when the court permitted the attorney, Benj. S. Liddon, to do the acts complained of over the objection of the State Attorney who was “then in attendance upon said court and not being from any carnee unable to perform the duties of his office, but not being present with said grand jury,” that officer was yet unwilling and refused to so perform his duties, and the case was of such a character that the minds of the jury untrained in legal matters needed professional assistance. The allegations that though in attendance upon the court he was yet not present with the grand jury preclude us from indulging the presumption that the official was properly performing his duty before the grand jury in this particular case even’ should we admit the exceedingly doubtful proposition that in any case a presumption may be indulged to aid defective averments of a plea in abatement to an indictment; especially is this so where the absence appears to be a purely voluntary act on the part of the officer, without any averment exculpatory of such absence. Under this natural, legitimate, necessary construction of the plea, the questions for us to determine are twofold, first,has the legislature provided a different mode of procedure in such a case, and second, if it has not does the Circuit Court in this State have an implied power to proceed as it did here? Under our constitution a State Attorney is appointed for each judicial circuit, “whose duties shall be prescribed by law, and who shall hold office foy four yeas.” Article V, sec. 15. The constitution provides therefore only for his creation and tenure of office, his powers, duties and compensation being subject to the legislative will. The legislature has provided for an acting State Attorney, when there shall be a vacancy in the office “by non-appointment or othewise, or if a State Attorney shall not be present at any regular or special term of the court, or being present, shall from any cause be unable to perform the duties of his office.” Section 1354 Rev. Stats. of 1892. Such attorney is appointed by the Circuit Judge, and his power ceases upon the arrival of the State Attorney or the cessation of his inability. Section 1355 provides for an assistant to' the State Attorney, when the amount of the State business renders it necessary. Such assistant is procured by the State Attorney by and with the consent of the court. These constitute the only statutory methods of substitution or assistance. There is no express provision in our law for procedure should the State Attorney, while present and able, refuse to represent the State. The power of removal in the Governor may act as a deterrent and if applied would prevent a recurrence of the wrong, but it does not afford a remedy, much less an adequate remedy, in a particular case. The law does not contemplate a lapsus through which the guilty, by reason of the complacency, good fellowship or what not of the State Attorney, may escape indictment, and then suffer vicarious punishment through the removal of the office. Whence comes the power of the Circuit Court to make such appointment? Remember we are not concerned at present with the question as to the sources fom which the appointee is to be paid, nor are we called upon to say whether a wholesale appointment that would have the effect of ousting a constitutional officer might not be an abuse of discretion such as this court might feel impelled to revise. Circuit Courts are with us the courts of most general jurisdiction both civil and criminal, successors in sort to Court of King’s Bench in England, clothed with most generous powers under the constitution which are beyond the competency of the legislature to curtail. See Ex Parte Henderson, C Fla. 279. In the constitutional grant of powers to these courts there are no expz’ess nor implied inhibitions against the appointment of such an agency for putting into effect the machinery of our criminal jurisprudence. In so far as the legislature has undertaken to prescribe that machinery, the provision is that the Circuit Judge appoints; thus recognizing, if such recognition be needed, a public policy or implied power, under or from which a locum tenens is to be provided should the State Attorney fail from any cause to perform his duties propez*ly. In the instant case we have a casus omissus, for which no provision has been made by express legislative enactment, much less is there an express inhibition against the application of that same pzzblic policy or implied power.' Under such conditions we ñnd the authorities ovez’whelzning, if not unanimous, to the proposition that the Circuit Court has the power to appoint a znember of the bar, a wholly impartial person, and in the absence of averment to the contrary in the plea, we must so hold Mr. Liddon to be — to represent the State..

In the examination of the adjudged cases, let us see first what this court has said. In King v. State, 43 Fla. 211, text 222, 31 South. Rep. 254, we held: “It is besides well settled that even in the absence of such a statute trial courts, having criminal jurisdiction, have an inherent power, in the exercise of such jurisdiction to appoint some one to represent the interests of the State temporarily during the absence or inability to act of the regularly chosen officer whose official duty it is to so represent the State’s interests,” quoting cases from Iowa, Indiana, Kentucky, Mississippi and Texas. We there recognize the court’s inherent duty to take the initiative and prevent a failure of the State’s interests by reason of the absence or inability to act of the regular State Attorney. Is that inherent or implied duty less active or wholly wanting, so that the State’s interest must fail in case the regular State Attorney is unwilling or refuse^ to act? The consent of the State Attorney, who is absent or unable to act is not essential to the statutory power of the court to appoint an acting State Attorney; nor does it appear that his protest would in any wise affect the validity of the appointihent. His consent is material only when he asks for the appointment of an assistant under section 1355. Again in that same case we said, page 224, “both the statute and the inherent authority of the court furnish ample resources from which to supply a prosecuting representative for the State in any case of emergency.” The statute provides the supply when the regular State Attorney is absent or unable to act. Is not the refusal to act a “case of emergency” supplied by the inherent power of the court?

In Miller v. State, 42 Fla. 266, 28 South. Rep. 208, we held in the absence of negating words in the plea, that the attorney there alleged "to have been before the grand jury might have been an assistant to the State Attorney under the statute and therefore might be present during the examination of witnesses and give advice upon points of law but should not be permitted to be present during their deliberations and to request and urge the finding of an indictment. We further said: “At common law the prosecuting officer, or an individual prosecutor, might appear in the secret session of the grand jury and conduct the evidence on the part of the crown (State v. Baker, 33 W. Va. 319, 10 S. E. Rep. 639, and authorities therein cited) but it does noir appear tkat'it was the practice for even the prosecuting officer to be present when the vote on the bill is taken. Authorities in this country incline to the view that the prosecuting attorney and liis assistant may be present during the examination of witnesses and give legal advice upon points of law, but should retire when the vote is taken, or, if present, should remain silent as to how the jury should vote on the indictment,” citing many authorities.

In State ex rel. Ross v. Call, 39 Fla. 504, 22 South. Rep. 748, speaking to the implied powers of the Circuit Courts, we said: “The Circuit Courts being creatures of our constitution, and their course of procedure not being minutely pointed out by the constitution, have implied authority to adopt necessary rules to enable them to exercise their constitutional jurisdiction where the common law, or rules enacted by legislative authority fail to provide a necessary method of procedure; and legislative regulations, when enacted, must not substantially impair the constitutional powers of the court, nor practically defeat their exercise.”

In State ex rel. Ellis, Attorney-General, v. Givens, 48 Fla ..., 37 South. Rep. 308, we recognized the power of the Circuit Judge to appoint a clerk to fill a vacancy created by death, only until the Governor might appoint a successor under the regular mode pointed out in the constitution. In that, case we gave effect to both the legislative recognition of the implied power of the court under the constitution and to the general provision in the constitution as to filling vacancies.

In McNealy v. Gregory, 13 Fla. 417, text 435, Judge WESTCOTT, speaking for the court argued: “Courts possess implied and resulting powers from general grants of jurisdiction. Thus, a court invested with criminal jurisdiction, has a resulting and implied power to summon a grand jury, (1 Brock. 159) but they have no inherent jurisdiction (7 Crunch 32).” Would it be denied that a Circuit Court has the power to- appoint a temporary substitute to perform the duties- of a clerk or sheriff who might in the midst of a trial refuse to act ? And yet these officers are also creations of the constitution, removable by the Governor. See also State v. Gleason, 12 Fla. 190-209.

We know of no other decision of this court bearing even remotely upon the subject of implied powers. What say tho other courts ? Without attempting to quote from all of the many cases we have examined or even to cite them, we shall call attention to a -selected few that we think sufficient to sustain the position taken, and to those apparently to the contrary.

In England it was the practice when the crown was unrepresented for the court to appoint counsel to conduct the prosecution. Regina v. Littleton, 9 Car. & P. 671; Queen v. Page, 2 Cox Crim. Cas. 221.

In Commonwealth v. Knapp, 10 Pick. 477, the Supreme Judicial Court of Massachusetts said the appointment of counsel to assist the law officers is one of the incidental powers of the court. In Tesh v. Commonwealth, 4 Dana (Ky.) 522, it is held that even though “no mode has been prescribed for appointing a prosecuting attorney, the court itself, charged with criminal jurisdiction, would have had the inherent power, ex-officio, to appoint a fit person to represent the commonwealth, and any person, acting under such authority, would act as legally and effectually as if he had been commissioned by the Governor.” The Supreme Court of Texas held in the case of State v. Gonzales, 26 Tex. 197, that the trial court could, authorize any competent person to act in the preparation of an indictment, should the district attorney be absent or disabled temporarily, or in any particular case where there might exist special reasons why he should not act,” and in State v. Johnson, 12 Texas 231, that admitting the trial court has not the power to fill a vacancy in the office of district attorney or to invest any one with the right to claim the privileges and emoluments of that office, yet it does possess, the power in his absence to appoint, an attorney to represent the State. In the latter case the argument is as follows: “If another attorney may represent the State upon the trial, why not, with the sanction of the court, in drafting and presenting the bill to the grand jury? It can scarcely be supposed that the judgment, whether of conviction or acquittal would be less effectual, as the basis of an exception, or as a bar ib a second prosecution, because the State was represented by an attorney other than the legally elected and qualified District Attorney. There is and can be no good reason why the State or the accused should be denied a hearing or trial, because of the mere absence of the District Attorney, when an attorney, whom the court shall approve as a competent and suitable person, will undertake, under such obligations as the court may prescribe, and under its authority and supervision, to represent the State, being amenable and responsible to the court for the faithful performance of the trust reposed. The District Attorney is not only an officer of the State, but also, in common with other attorneys, an officer of the court. The former is not less subject, in the discharge of his ordinary official duties, to the authority of the court than the latter. And any dereliction of official or professional duty in bringing a case before the court, or in its conduct when there, would be equally the subject of animadversion by the court. It seems that in Tennessee it has be'en held to be essential to the validity of an indictment, that it be preferred by the proper officer of the State. (Wharton’s Am. Crim. Law, p. 122, n.) We have not access to the reported cases in which this is said to have been dceide l; but we have access to an early statute of that State which might well warrant the decision.

It may be supposed that the interests of the public might suffer, or that the State might sustain an injury by not being represented by its proper law officer. But it is not easy to perceive how the rights of the accused could be thereby prejudiced; or why it should be held to affect the validity of an indictment duly found and presented in court, by a competent grand jury. Nor, indeed, is it perceived on what principle the right can be denied the grand jury, under our law, to find and prefer an indictment in a proper case, without the co-operation of the District Attorney. He may enter a nolle prosequi; but if he should think proper to. prosecute on behalf of the State, it is not perceived what interest the accused could have in the question whether the indictment was drafted and presented to the grand jury by him, or was drafted by one of 'their number. But it is not necessary in the present case to inquire into their authority in that respect.

We are of opinion that the fact that, in the temporary absence of the District Attorney, the State was, by the authority of ’the court, represented by another attorney, in drafting and presenting to the grand jury the bill, was not a ground for quashing the indictment, and that the judgment be reversed and the cause remanded for further proceedings.”

In Dukes v. State, 11 Ind. 557, S. C. 71 Am. Dec. 370, the court says: “We think the court possesses an inherent power to appoint one of the attorneys of the court, when necessary to prevent a failure of justice, to conduct the prosecution of a criminal;” and Mitchell v. State, 22 Ga. 211, S. C. 68 Am. Dec. 493, is to the same effect. In Iowa the power to appoint is placed in the categories of implied powers, along with the power to punish for contempt or to appoint ministerial or police officers, State v. Tyler, 122 Iowa 125, 97 N. W. Rep. 983, and cases cited. In the case of the People ex rel. Lindsley, District Attorney v. District Court of Second Judicial District, and Johnson as Judge, 29 Colo. 5, ... Pac. Rep. ..., it was held in the absence of statutory authority and over the objection of the district attorney the trial court is in duty bound to appoint a special prosecutor when it has reason to believe that there are crimes to be investigated in which the district attorney- is involved or that his connect^ therewith is such that it should be investígated. See, also, Roberts v. People, 11 Colo. 213, 17 Pac. Rep. 637, and Board of County Commissioners of Hinsdale County v. Crump, 18 Colo. App. 59, 70 Pac. Rep. 159. The power is recognized in Montana, State v. Whitworth, 26 Mont. 107, 66 Pac. Rep. 748, Territory v. Harding, 6 Mont. 323, 12 Pac. Rep. 750, in North Dakota, State ex rel. Clyde v. Lauder, 11 N. D. 136, 90 N. W. Rep. 564 (where State Attorney refused to prosecute), in Idaho, State v. Corcoran, 7 Idaho 220, 61 Pac. Rep. 1034, and in Kansas, State v. Nield, 4 Kan. App. 626. See, also, United States v. Hill, 1 Brock. 156, S. C. 26 Fed. Cas. No. 15,364, per Chief-Justice Marshall, and United States v. Cobban, 127 Fed. Rep. 714, as also 12 Cyc. 531.

In State v. Heaton, 21 Wash. 59, 56 Pac. Rep. 843, the Supreme Court recognized in terms the implied power of the trial court to appoint counsel, but held that under their statute the power could not be exercised where the regular State representative was present and able and willing to perform the duties of the office. It seems that in that case the legislature had made ample provision to meet the contingency and when that is done, as we have heretofore indicated there is no place for an implied power. The same considerations apply to the cases cited from Michigan.

We have not before us, as did the Texas court quoted above, the Tennessee statutes, so as to be able to say as did that court that the statute controlled the Tennessee decisions, but it appears from Pippin v. State, 2 Sneed’s (Tenn.) 43, that the same constitution that created the court also provided the conditions under which it might appoint counsel for the State, and the construction of eatpressio unkvs, etc., was applied.

The Supreme Court of Oklahoma held in Mahaffey v. Territory, 11 Okla. 213, 66 Pac. Rep. 342, that the district court had no authority to appoint an assistant to the county attorney, because of the inexperience of the latter. The statute provided for appointment by the court where the office was vacant, or the attorney absent or unable to attend to his duties, and farther that the Governor might request the Attorney-General to prosecute or defend in any civil or criminal cause in which the territory may be a party or interested. The appointment was a general one “to act in all matters before the court in the capacity of county attorney and public prosecutor in said county.” The Supreme Court construed the words “unable to attend to his duties” to mean some mental or physical incapacity to perforin his duties, and not lack of expert ence or incapacity to conduct the prosecution properly. We have no fault to find with this decision.

Durr v. State, 53 Miss. 425, was decided in 1876. The opinion is short and apparently the reversal was upon another ground; the court while saying that the permission given to “the attorney who had been employed to assist in the prosecution, to go before the grand jury with witnesses, and there act for the district attorney in framing the indictment, was improper” yet refused to quash the indictment and reversing the judgment for error as to the petit jury awarded a new trial. This case is referred to in later decisions as authority to the proposition that an indictment will be set aside where an attorney representing private interests appears before the grand jurors and urges them to action, just as we held in the Miller case supra.

II. The third plea is also defective. It was argued before us as a case of false personation but we find no such allegation in the plea. It does not aver that J. P. Billingsley falsely impersonated J. A. Billingsley, nor that he fraudulently procured himself to be placed upon the grand jury, nor is it alleged that he was not known under the name of one of those who served on that jury. The plea as framed construed as it must be most strictly against the pleader, presents simply a case of misnomer. Rampey v. State, 83 Ala. 31, 3 South. Rep. 593.

III. The special replication to the second plea put in issue the sole material issue raised by the plea, that of counseling, requesting and urging the grand jury to find the indictment. What we have said in the discussion of the first plea, makes what remains of the second plea immaterial.

IY. The plaintiff in error again contends most strenuously that the court erred in rejecting testimony proffered in support of the issue raised by the second plea. The Attorney-General insists that in the absence of a special bill of exceptions made up and authenticated at the trial of the plea in abatement, we are precluded from passing on this testimony. Both trials were at the' same term of the court and while nothing in our practice prohibits the settling bills of exceptions taken to the points as they arise, it is more usual and entirely proper to present all the exceptions in one bill, as was done in this case.

It was sought to prove by the State Attorney, who signed the indictment that he procured B. S. Liddon at the Fall term, 1902, to be his assistant in the matter of the alleged assault by Taylor upon W. B. Lamar, but that he had not authorized him since and that all the acts done by said Liddon was without the authority and over the objection of said'State Attorney. Without determining, whether a State Attorney may be permitted to impeach ah indictment, which he has signed, it is clear that the testimony sought to be elicited had no bearing upon the real issue here. It might tend to prove the issues sought to be raised by the first plea, but that plea had disappeared and it is moreover a question whether the proffered testimony did not rather tend to prove the State’s case, in showing an unrevoked authorization by the State Attorney. See State v. Smith, La. Ann. ..., 31 South. 693.

The same remarks might be applied to the next assignment of error. The defense offered to have the foreman of the grand jury that found the indictment, read the following paper: “As the District Attorney had presented to the grand jury the point that Judge Liddon is no longer his assistant, and as such had' no right to appear before this jury in the case of Lamar vs. Taylor, we, the jury, respectfully desire to be instructed .by the court on this point. A. C. Spiller, Foreman,” and further asked if the paper was presented by him to the court in the presence of the grand jury. The court .properly sustained objections to both the reading of the paper and the answering of the question, in that they were both outside the real issues involved. He was further asked the several questions if the State Attorney appeared before them, and if Mr. Liddon appeared before them and advised .them upon questions of law at the investigation. These questions, were wholly «immaterial, as shown under our discussion of the first plea. The witness was further asked to State whether or not the State Attorney was requested by the grand jury to appear before them to advise them upon points of law, and if so did he so appear and if not why not? An objection was sustained upon the grofind, among others, that‘the question was vague and leading. The question is involved to say the least, and no error was committed in sustaining the objection.

The foreman was next asked “Now if Mr. B. S. Liddon appeared before the grand jury, state whether or not the ■ State Attorney objected to said B. S. Liddon appearing before the grand jury to prosecute the case ?” The question was objectionable on the ground interposed thereto, as argumentative and hypothetical, and moreover was not pertinent to the issue.

He was asked “State whether or not the indictment in this case was ignored, and afterwards, without further testimony this indictment was found?” In Mercer v. State, 40 Fla. 216, 24 South. Rep. 154, we decided that for the purpose of quashing an indictment, the court will never inquire into the character of. the evidence which influenced the grand jury, and the principle there announced is conclusive against the evidence sought to be evoked by this question. This question being improper it was not error to refuse questions hypothesized upon the existence of the supposed facts therein inquired of, as for example “If this bill was ignored and afterwards reconsidered and found by the grand jury without additional testimony, state whether or not said B. S. Liddon appeared before the said grand jury advising, counseling and urging the finding of the bill, upon the testimony before the grand jury?” Under an error assigned upon the refusal to permit such a question it is argued that the court refused all avenues that might be opened to the defendant to' prove the issues raised by his plea. Without committing ourselves to the proposition that the rule, obtaining in this State, that a petit juror will not be heard to impeach his verdict, extends equally and alike to grand jurors, we fail to find one question, otherwise unobjectionable, that sought to elicit from this grand juror whether Mr. Liddon urged or advised or counseled the finding of an indictment. No other grand juror was offered as a witness. The question was put to Mr. Liddon on the stand and he answered TE categorically in the negative.

Without setting put in detail the other questions it may he said generally that they went to the wholly immaterial points set out in the overrul'ed'lirst'piea as to the framing the indictment by Mr. Liddon, His presence in the grand jury room' during the examination'bf witnesses and the non-presence of the State Attorney.

For cases holding that grand jurors are not permitted under the circumstances to impeach their indictment see King v. Marsh, 1 N. & P. 187; Hooker v. State, 98 Md. 145, 56 Atl. Rep. 390; State v. Johnson, 115 Mo. 480, 22 S. W. Rep. 463; Turner v. State, 57 Ga. 107; Simms v. State, 60 Ga. 145; State v. Beebe, 17 Minn. 241; People v. Hulbut, 4 Denio 133, S. C. 47 Am. Dec. 244; State v. Davis, 41 Iowa 311; People v. Thompson, 122 Mich. 411, 81 N. W. Rep. 344; Ex Parte Sontag, 64 Cal. 525, 2 Pac. Rep. 402; State v. Hamilton, 13 Nev. 386; State v. Fasset, 16 Conn. 457; Gitchell v. People, 45 Ill. App. 116, 146 Ill. 175, 33 N. E. Rep. 757; State v. Oxford, 30 Texas 428; Hall v. State, 134 Ala. 90, 32 South. Rep. 750; Wharton’s Crim. Pl. & Pr. (9th ed.) section 379; 17 A. & E. Ency. Law (2nd ed.) 1295; 1 Bish. New Crim. Proc. section 858; 4 Wigmore on Evidence, section 2364c.

But two assignments are argued on the trial of the plea “not guilty.”

One Blanchard, a witness, testified he was familiar with canes or sticks, and that the one presented to him was composed of sole leather washers built over a steel rod, and varnished on the outside to make it resist water, with a copper head and was asked “Is that stick one that is likely to produce death at the hands of 'an enraged man?” and answered “Rightly used in the hands of a powerful man it might prove a deadly weapon. It depends on how the man stands and how hard he strikes.” The question was objected to on the ground that the jury were as capable of deciding as the witness. There is some conflict in the authorities as to whether the question is permissible, but we think it clear that the answer-given was under the circumstances wholly harmless, especially as it was shown that the defendant used a loaded pistol as well as the stick. However this may be and however pertinent the question might be if the accused had been convicted of an aggravated assault, in the-commission of which a deadly instrument is essential, it is not so material on a conviction of assault with intent to commit manslaughter. We have repeatedly held that to constitute such a criihe it is not necessary that the assault be made with a deadly weapon. Gray v. State, 44 Fla. 436, 33 South. Rep. 295; Drummer v. State, 45 Fla. 17, 33 South. Rep. 1008; McDonald v. State 46 Fla. 149, 35 South. Rep. 72. The witness was subjected to a rigorous cross-examination and appears to have been guarded in all his answers both on the direct and on the cross. The stick was before the jury, to be passed upon by them, and the answer being what the law would imply we can not say that error was committed. It had therefore been, shown that the stick weighed eleven and three quarter ounces. See Navarro v. State, 24 Tex. App. 378, 6 S. W. Rep. 542; Ashton v. State, 31 Tex. Crim. Rep. 479, 21 S. W. Rep. 47; Cornish v. Territory, 3 Wyoming 95, 3 Pac. Rep. 793. There was likewise no error in permitting the witness under the circumstances to testify as to the material of which the stick in evidence Avas composed.

There remains but the assignment based upon the sufficiency of the evidence to support the verdict. It would • serve no useful purpose to set forth the evidence. It has been carefully examined by us and is deemed sufficient.

It follows that the judgment of the Circuit Court should be affirmed at the cost of the plaintiff in error and it is so ordered.

Carter and Shackleford, JJ., concur. Whitfield," C. J., being disqualified, took no part in the consideration of this case.