State v. Boykin

• Decision Date: 21 May 1917
• Citation: 114 Miss. 527,75 So. 378
• Court: Mississippi Supreme Court
• Parties: STATE v. BOYKIN

75 So. 378

114 Miss. 527

STATE v. BOYKIN

Supreme Court of Mississippi

May 21, 1917

March 1917

Division A

APPEAL from the circuit court of Smith county, HON. W. H. HUGHES Judge.

Roscoe Boykin was indicted, a demurrer to the indictment was sustained and the state appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

Ross A. Collins, Attorney-General, for the state.

This indictment is valid for it was signed by Miss Stringer who was acting as deputy clerk and was recognized as such by the public. She was a de facto deputy and her acts were valid notwithstanding section 1006 of the Code, had not been complied with in appointing her. 7 Cyc., par. b., page 247; Wimberly v. Bowland, 72 Miss. 241, 16 So. 905; Mobley v. State, 46 Miss. 501. In the case of Wimberly v. Bowland, supra, it was held:

"The fact that Hiram Creekmore was, at the time of the issuance of the writ of attachment which is assailed in the cause, acting as deputy for his father, and was generally recognized by the public as the deputy clerk, is too clearly shown by the evidence to admit of controversy. That, by reason of his minority, he could not have been lawfully appointed as such deputy, is not material, for a de facto officer is one who is such in fact but not in law, and minority is not different from any other legal disqualification. Throop on Public Officers, ch. 27; 5 Am. & Eng. Ency. Law, title, De Facto Officers.

The failure of the deputy to sign his name as deputy to the writ did not render it void. That is, at most, a mere irregularity, amendable under our statute. Gamble v. Tranhem, 3 How. (Miss.) 32; Code 1892, par. 3439; Stratley v. Kitchens, 55 Miss. 578.

Martin & Currie and T. J. Wills, for appellee.

The indorsement by the foreman and the marking, filing, dating, and signing by the clerk are as essential to the validity of an indictment as the concurrence and returning thereof by at least twelve of the jurors. In fact, section 1418 provides that the indorsement by the foreman, and the filing, dating, and signing by the clerk shall be legal evidence of the finding and presenting to the court of the indictment.

The instrument does not become an indictment until the legal evidence thereof is placed upon its face which establishes the instrument as an indictment. Unless this evidence appears on the face of the instrument, there is no indictment and no proof of its character can be introduced whatsoever. This court held in the case of Stanford v. State, 76 Miss. 257, that the filing of an indictment and dating of it and signing by the circuit clerk is the exclusive evidence of its finding and presentment by the Grand Jury. See also: Smith v. State, 58 Miss. 867; Cooper v. State, 59 Miss. 267; Holland v. State, 60 Miss. 937; Lea v. State, 64 Miss. 294.

In the case of Washington v. State, 78 Miss. 189, the clerk was permitted to mark the indictment, "filed" after counsel for defendant had made his closing argument. This court in affirming the action of the lower court held that the clerk was performing his duty during the term of the court in which the performance was required, and there was no error in so doing. The court, however, approved the Standford Case supra, which held that the clerk could not mark the indictment "filed," at a subsequent term. We take it that the two cases when considered together, hold that the clerk may mark an indictment "filed," date it and sign his name thereon in the presence of the court at any time during the term at which the indictment is presented by the grand jury, but it cannot be so filed and signed after the adjournment of the court at which the grand jury made the presentment. The Washington case does not hold that the defendant can waive a defect that would invalidate the indictment, but only holds that he can waive an objection to the delay, of completing the indictment, during the term of court at which it is returned.

Section 1601 of the Code of 1906, provides that in all cases where the signature of any person is required by law, it shall always be the proper handwriting of such person, or, in the case that he be unable to write, his proper mark. Section 1006 of the Code of 1906, provides how deputy clerks may be appointed, and when so appointed and sworn, empowers them to do all things which their principles may lawfully do. The deputy in acting as such signs the name of the clerk and his own name as deputy. It is the signing of the name of the deputy as deputy that gives validity to the act, under the authority of section 1006, and his name in his proper handwriting.

Most of the duties of the clerk are ministerial, and a strict compliance with the law in the performance of acts purely ministerial is not required. The acts are the performance of duties imposed upon the clerk with respect, in civil cases to the conduct of the litigations between contending parties and in criminal cases between the state and the defendant. In the case of the filing, dating, and signing of an indictment by the clerk, he is not acting as a ministerial officer between the state and defendant, but is acting for the state, and as the state against the defendant. His act instead of being ministerial, is executive, and the law giving him authority to act for the state must be strictly complied with. To show that this is true, the Constitution, both Federal and state has hedged the sovereign power of the state with conditions to be performed, precedent to the punishment of any citizen. The...