Diggs v. State

BRICKELL, J.

— A defendant must be indicted by his true name, or by the name by which he is generally known and called. If neither of these was known, at common law he was indictable as a person whose name was unknown to the grand jury, accompanied with some averment of fact identifying him. The statute now changes this rule of the common law, so far as the averment of a fact identifying the accused was necessary. R. C. § 4113. The identity of the person charged, and of the person arraigned to answer, is the requisition and object of the laws. Hence it follows, the accused, when his name is not unknown, is not identified, unless his real name, or that by which he is generally known and called, is used. The insertion or omission of a middle name, or of the initial thereof, is immaterial. Edmundson v. State, 17 Ala. 179. If a person is in the habit of using initials for his Christian name, and is indicted by these initials, the fact whether he is so known may be put in issue; and if the issue is proved against him, he may properly be convicted. City Council v. King, 4 McCord, 487.

In this case, if the appellant used his name as “ J. Sheppherd Diggs,” so that thereby he was generally known and called, this is proper matter of replication to the plea ; and he would, if it is true, be bound to answer the indictment. The plea on its face is good, and, if interposed before the plea of not guilty, should not have been stricken out as frivolous. A plea not subject to demurrer, and interposed in the regular order of pleading, should never be stricken out on- motion; and it is generally the better practice to put the party on his demurrer. Johnson v. McLaughlin, 9 Ala. 551. An indictment against a defendant by the initial of his Christian name, or by .his middle name only, or by the initial of his first and his middle name, is, primd facie, subject to a plea in abatement. If the indictment, in that form, uses the name of the defendant as it is generally known and called, that must be replied to the plea. We are not sure that the record affirmatively shows this plea to have been filed before the plea of not guilty was interposed, and that we could reverse because of the action of the court in striking it out. As the judgment must be reversed on other grounds, it is not necessary to determine that question.

2. The demurrer to the indictment was properly overruled. It is drawn to a greater length than is usual, or than is necessary under our present statutes. It conforms to approved precedents at common law, and avers every ingredient of the offence imputed to the accused. He could not mistake the offence charged; and, on conviction, no court could doubt the judgment to he rendered. As a general rule, we- think it may safely be asserted, that an indictment good at common law is good under our statutes. That the time of committing the offence is expressed in figures, not in letters, if objectionable at common law, under the authority of State v. Raiford (7 Porter, 102), is not an objection merely, because the statute dispenses with a statement of the time when the offence was committed. Molett v. State, 33 Ala. 408.

3. The State was perniitted, against the objection of defendant, to prove by the solicitor pro tem. that he acted as solicitor at the time the grand jury investigated the charge against the appellant; that, at the request of the grand jury, he telegraphed to L. Brewer & Go. for the draft drawn on them by Hill, and charged to have been given to defendant as a bribe; that he received a letter in reference to said draft, which was in the handwriting of a member of the firm of Brewer & Co., and that this letter had been lost or mislaid. For what purpose this evidence was admitted, we are not informed by the bill of exceptions, nor can we see its relevancy to the issue to be tried. The only question before the jury was, whether the defendant had corruptly received, or agreed to receive the draft, while in the official position of county solicitor. The corrupt reception, or the corrupt agreement to receive, consummated the offence, though the draft was never paid. In no aspect of the case presented by the record was it necessary for the State to show how the solicitor obtained possession of the draft. If the evidence was designed to aid in identifying the draft, or to prove its payment, the correspondence between the solicitor and the drawers was not admissible. As the evidence is now presented, it was irrelevant, and should not have been received. Its admission may not have prejudiced the appellant, and we do not see that it was capable of working any special injury to him; but we cannot see clearly -that it did not. The rule often announced by this court is, that the admission of irrelevant testimony will reverse, unless the record clearly shows that no injury would have- resulted. It is not enough that we cannot discover injury ; we must see clearly that none could have resulted. Frierson v. Frierson, 21 Ala. 549; Pool v. Devers, 30 Ala. 672; Mayer v. Clark, 40 Ala. 259.

* 4. There was not a substantial variance between the draft offered in evidence and the draft described ■ in the indictment. The indictment does not purport, and it is not necessary in this case it should, to set out the draft according to its tenor or precise recital. 1 Bish. Cr. Pr. § 554. The variance is supposed to arise from the fact, that in the indictment the draft is described as for “two hundred'and ninety-eight TV1T dollars,” and is dated “ May,T870; ” while the draft offered in evidence is for two hundred and ninety-eight dollars, and is dated May 14, 1870. It would have been sufficient, in this case, to have averred in the indictment that the appellant received a draft, drawn by Hill on Brewer & Co., for the payment of money, without describing its date, amount, or time of payment. The character or amount of the thing received, or agreed to be received, so that it appears to have been of value, is not material; the draft offered in evidence substantially conformed to the description in the indictment, and the objection of the appellant was probably overruled. The evidence of the solicitor was inadmissible and unnecessary; and as the court should, without it, have overruled the objection, its admission is not a reversible error.

5. The charge given by the court is objected to as erroneous, because it asserts that it was the province of the jury “ to discard and treat for naught any part of the evidence.” Without explanation, this charge may have induced the jury to suppose that they had power, capriciously or arbitrarily, to reject any portion of the evidence. This is not the power or province of the jury. They cannot reject evidence, unless they regard it as unworthy of credit, because the witness has been successfully impeached; or because he had been contradicted ; or because of its inconsistency in itself, or with other evidence in the . cause; or because the manner of the witness leads them to regard him as not worthy of belief; or for some other substantial reason. The tendency of this charge may have been to mislead the jury. Such a charge is not, however, a reversible error. The party objecting should have asked an explanatory charge, and thus obviated or removed its tendency to mislead. Abraham & Bro. v. Nunn, 42 Ala. 51; Scully v. State, 39 Ala. 240.

6. It is next objected that the charge asserted a county solicitor is a ministerial officer, subject to indictment under section 3564 of the Revised Code. In this we are of the opinion there was no error. If a county solicitor is not a ministerial officer, it would be difficult, if not impossible, to define his character ; all the duties with which he is charged pertain to the protection of the State, and the general administration of the criminal laws. He attends on the grand jury, as their legal adviser ; draws the indictments they may find ; prosecutes all indictable offences, and prosecutes or defends any civil action to which the State is a party, pending in the Circuit Court. R. C. § 856. No one of these duties involves executive or judicial functions. They are purely ministerial. In the charge given there is, therefore, in this respect, no reversible error.

7. This brings us to the material question this case presents. The defendant not being county solicitor de jure, is he indictable for malfeasance in office while displacing the solicitor de jure ? That there may be an officer de faeto, while there is an officer de jure ; or, in other words, though an office is not vacant, and there is an existing officer de jure, one who enters into and assumes its duties, under color of appointment, will be an officer de facto, is a proposition maintained by all the authorities we have had an opportunity of consulting. In Garner v. Clay (1 Stew. 132), the acts of a sheriff de facto were deemed valid, although there was another person who had been elected to the office, and, of consequence, was entitled to it de jure. In Flournoy v. Clements (7 Ala. 535), the sheriff elect qualified, gave bond, and entered on the discharge of the duties of the office. Subsequently, the judge of the County Court, under a statute then of force, vesting him with jurisdiction, declared the office vacant, and it was filled by executive appointment. The judgment declaring the office vacant was reversed by this court. The judgment of reversal, of course, rendered the judgment of the County Court judge mere waste paper. It was converted into a nullity, and could not subsequently be regarded as having ever had a legal existence. The office was, therefore, never vacant; yet this court held the person acting under executive appointment, while the judgment of vacancy was unreversed, a sheriff defacto. In Thompson v. State (21 Ala. 48), the Commissioners’ Court, in the exercise of its statutory power, appointed an overseer of a public road. Subsequently, the judge of the County Court, who had power only to fill vacancies occurring after the Commissioners’ Court had appointed, without a vacancy, appointed another person, who assumed to act. This court held that, although there was not a vacancy for the judge of the County Court to fill, and although there was an overseer de jure, the overseer so appointed must be regarded as an overseer de facto. In Gregg v. Jennison (55 Penn. 468), it is held, that an officer defacto is a person who is such by color of election, though ineligible, or though the office was not vacant. The same principle is asserted in Angelí & Ames on Corporations, § 287.

It is unquestionably true that under-the Constitution and. laws of this State there can be in each county but one legal county solicitor, or but one legal county treasurer, or sheriff, or clerk of the Circuit Court, or judge of probate; but to declare that there cannot be,, as to each of these offices, an officer de jure and an officer de facto, would go very far towards declaring that there was not in law an officer de facto. The law deems it of high importance to have all offices filled by the persons legally and constitutionally entitled to hold them. It discourages and discountenances all intrusion into office, or usurpation of its authority. It affords the State, and the rightful claimant, every facility to oust an intruder or usurper. While the law is mindful of the importance of having the rightful officer in place and power, it deems it of more real, practical importance to be able to deal safely with those who are actually in place. On this principle, necessary to the safety of the citizens, to the keeping of governmental organization in motion, and to the just and speedy administration of the law, rests the whole doctrine of officers de facto. As was said by this court in Heath v. State (36 Ala. 273), the authorities may not be uniform in the definition of an officer de facto, “ but they all concur in recognizing as such any person who exercises the duties of an office under color of an appointment or election to that office.”

If the defendant was at any time solicitor of the County of Dallas, he was so by appointment. That appointment he derived from the judge of the Circuit Court of the first judicial circuit, of which Dallas forms a part. That judge only, under the Constitution, had the power of appointing to the office of solicitor. His appointment, though defeasible and invalid, is color of title. If the defendant accepted the appointment, and exercised the duties of the office, he was an officer de facto, though there may have been a solicitor de jure claiming the office. The law, so long as he kept in the line of his official duty, would have extended him the protection afforded the rightful officer. Official responsibility, civil and criminal, is but just compensation for this protection. When he is called to answer for malfeasance, he cannot be permitted to assail the validity of his appointment; he is estopped from abnegating his official capacity. 1 Bish. Crim. Law, § 917.

In Rex v. Berdett (6 Car. & P. 124), a letter-carrier was indicted for embezzling an overcharge on a letter delivered to him. No evidence of his appointment as a letter-carrier was offered; but one of the witnesses incidentally stated that he acted as such. The statute under which he was indicted prohibited and punished embezzlement by public officers. The court submitted the fact of embezzlemefit, and the question whether the prisoner had acted as letter-carrier, to the jury, declaring that if the two facts concurred, the prisoner was guilty; and he was convicted. In Allen v. McNiel, 1 Mills (S. C.), it is said, “ When a person is sued for any act done by him in an official capacity, it does not lie in his mouth to say he is not the person he has held himself out to the world to be.” In State v. McEntyre (3 Ired. 174), the court held : “ A person who undertakes an office, and is in office, though he might not have been duly appointed, and therefore may have a defeasible title, or not have been compellable, to serve therein, is yet, from the possession of its authorities and the enjoyment of its emoluments, bound to perform all the duties, and liable for their omission, in the same manner as if the appointment were strictly legal and his right perfect.” In State v. Mayberry (3 Strobh. 144), a constable was indicted for suffering a negligent escape, and was held liable, though not an officer de jure; and the court said, “ It would be dangerous if he were permitted to evade liability by proving he is not an officer de jure.”

It is difficult for us to conceive of a more evil and dangerous proposition, than that one who intrudes into or usurps a public office, assumes its duties, and exercises its powers, can commit official crimes and shield himself from punishment by alleging that his crimes were only additions to his intrusion or usurpation. Admissions, on which another is induced to act, become conclusive on the party making them; and it is immaterial whether they were made innocently or fraudulently. McCrary v. Remsen, 19 Ala. 430; Harrison v. Pool, 16 Ala. 167; Stone v. Britton, 22 Ala. 543. If this be true, what satisfactory reason can be given for not applying the same principle to one who deliberately assumes and exercises the duties and powers of a public office ? He holds himself out to the world as an officer ; he becomes entitled to protection as such ; he can exercise the duties, and take the emoluments, until he is ousted; and he must be amenable, as if he was the rightful officer. In the charge given by the court there was, therefore, no error.

8. Nor did the court err in refusing to charge that, if Haney was the rightful solicitor, both he and the defendant could not hold the office generally, and discharge all the duties of office at the same time. This charge was calculated to mislead the jury, and to divert their attention from the real issue to be tried. Haney’s right to the office is not involved in this case. That right may be fully conceded. So far as the office is an element of the crime imputed to the defendant, the inquiry, and the only inquiry, is, did the judge of the Circuit Court make the appointment set out in this record ? did the defendant accept that appointment, and act under it ? If he did, without regard to who was the rightful solicitor, he is liable to this indictment.

9. In refusing to charge that if the defendant did not act under the appointment he should be acquitted, the court erred. Acceptance of the appointment was necessary to fix official character on the defendant. This acceptance may be proved by the acts of defendant, and by his claiming to hold the office. But, without evidence of acceptance, he should not be convicted. That is as essential to his official capacity as an appointment.

For the error we have noticed, the judgment is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.