Keith v. State

• Decision Date: 29 October 1887
• Citation: 5 S.W. 880,49 Ark. 439
• Parties: KEITH v. STATE
• Court: Arkansas Supreme Court

5 S.W. 880

49 Ark. 439

KEITH v. STATE

Supreme Court of Arkansas

October 29, 1887

APPEAL from Boone Circuit Court, R. H. POWELL, Judge.

The appellant was convicted of murder in the second degree, in the Boone Circuit Court, at the July term for the year 1887. He moved for a new trial and also in arrest of judgment, and both of these motions having been overruled, he excepted and obtained an appeal from the judgment pronounced against him.

The ground relied upon to arrest the judgment, as stated in the defendant's motion, was, that the Judge who presided at the time of his conviction, was not the legally constituted Judge of the court; that the Hon. Richard H. Powell, who held said court and presided at the trial, was, at the general election on the 4th day of September, 1886, elected Judge of the Third (3d) Judicial Circuit, composed of the counties of Stone, Independence, Jackson, Lawrence, Sharp, Izard, Fulton and Baxter; that Judge Powell was duly commissioned, and having qualified, entered on his duties as Judge of said circuit; that by an act of the General Assembly, approved March 3, 1887, a new judicial circuit was created composed of the counties of Newton, Boone, Searcy and Marion, which prior to that time were part of the Fourth Judicial Circuit, and the counties of Izard, Baxter and Fulton, which were part of said Third Circuit; that said new circuit, so composed, was designated as the Fourteenth (14th) Circuit, and that Judge Powell was authorized by said act to exercise the functions of Judge of said Fourteenth Circuit, and by virtue of that act and without other authority, he presided over said court at the time of the defendants conviction. When called on to show cause against the sentence about to be passed upon him the defendant objected to it on the same ground stated in his motion to arrest the judgment, and caused his objections to be spread upon the record.

Section 2, of the act creating the Fourteenth Judicial Circuit, is as follows:

"Sec 2. That the counties of Stone, Independence, Jackson Lawrence, Sharp and Randolph shall hereafter compose the Third (3d) Judicial Circuit of the State of Arkansas."

Section 7 provides: "That an election shall be held in the several counties of the Third Judicial Circuit, as reorganized, on the first Monday in May, 1887, in the mode and manner now prescribed by law for holding elections for similar offices," etc.; and section 9, of the same act is as follows:

"Sec. 9. That the Circuit Judge elected at the last general election for the Third Circuit, whose residence falls within the Fourteenth, as created by this act, shall continue to exercise the functions of Circuit Judge for the said Fourteenth Circuit until his successor is elected and qualified as now provided by law."

The act also provided, that for the purpose of holding the spring terms in the counties affected, it should not take effect until the first Monday in June, 1887.

The only ground of the motion for a new trial, which was insisted upon by the appellant, is shown in the opinion.

Judgment reversed and cause remanded.

O. W. Watkins for appellant.

1. Appellant had the right to raise the question as to the Judge's authority to hold the court. 6 Ark. 227, 235; 12 id., 210; 25 id., 622.

2. The court erred in giving instruction No. 1. Art. 7, sec. 23, Const. Ark. 37 Ark. 585; 45 id., 172.

3. Judge Powell was neither de jure nor de facto Judge of the Fourteenth Judicial Circuit. Const., art. 7, sec. 15; sec. 50 id.; sec. 21, id.; sec. 22, id,; Acts 1887, p. 47; 9 Ark. 302; 11 Am. Law Reg., 552 and note; 48 Ark. 89; 2 Ark. 502; 4 Ark. 550. The unauthorized acts of even a de jure officer are not binding, but void. 2 Ark. 229; 20 id., 77; 27 id., 349; 48 id., 151.

D. W. Jones, Attorney General, for appellee.

Waiving the question as to the right of the appellant to question Judge Powell's power or authority, we contend:

1. The Legislature added the counties of Newton and Boone to the Third Circuit, and changed its name to the Fourteenth.

They did really create a new circuit and named it the Third.

The Legislature has power to take a county from one circuit and add it to another. Const., art. 18. There is nothing in the name given a circuit. 9 Ark. 309.

2. Similar instructions to the charge in this case were given in 29 Ark. 25-6. The court has the right to give cautionary instructions. 29 id., 116.

OPINION

COCKRILL, C. J.

The appellant does not deny the jurisdiction of the Boone Circuit Court, but seeks to vacate the judgment of conviction upon the ground that the Judge who presided over the court at the term when he was convicted was not the legally constituted Judge of the court. He undertook to raise the question by objecting to the passing of sentence upon him and by motion in arrest of judgment. But the facts disclosed by the objections which he caused to be spread upon the record, as well as our judicial knowledge of the leglation bearing upon the question, show that Judge Powell, if not the Judge de jure, is the Judge de facto of the circuit in which the appellant was convicted. The judgment of the court is not, therefore, subject to attack, and the question of the validity of the act of March 3, 1887, argued by council, is not presented for consideration.

The principle that the acts of an officer de facto are binding upon the public as though done by one in office de jure, and that his right to the office cannot be questioned except in a direct proceeding to which he is a party, is well settled, and is not new in this court. Moore, as Adm'r., v. Turner, 43 Ark. 243; Pierce v. Edington, 38 Ark. 150; Kaufman v. Stone, 25 Ark. 336; Caldwell v. Bell & Graham, 3 Ark. 419; S. C., 6 Ark. 227; Hildreth's heirs v. McIntire's devisees, 19 Am. Dec. 61, and note.

The case of Rives v. Pettit, in the 4 Ark. 582, is more nearly analogous than any other in our reports. There a Circuit Judge presided in a court outside of his circuit under the supposed authority of an act of the Legislature permitting an exchange of circuits between Judges, which turned out to be unconstitutional. Upon an appeal from a judgment rendered by the court thus organized, it was ruled that the proceedings were binding upon the parties and the judgment was affirmed. It was intimated in that case that the ruling might have been different if the parties had not voluntarily submitted to the jurisdiction; but as consent cannot confer jurisdiction or judicial power (Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126), and the facts were all apparent to the court, we fail to appreciate the force of the suggestion. The court went further in that case than we are called upon to go in this, inasmuch as there was a Judge de jure in office whose duty it was to hold the court the proceedings of which were questioned; while here, if the Fourteenth Judicial Circuit has a legal existence, as counsel for the appellant admits, and Judge Powell, who is exercising the functions of that office under legislative sanction, is not the Judge de jure, there is no such Judge. But the doctrine of Rives v. Petit is sustained by well considered cases.

In the case of Clark v. Commonwealth, 29 Pa. 129, the question presented in this case arose. The Legislature had enacted that the county of Montour should be transferred from one judicial district to another, during the term for which the Judge of the latter district had been elected, and the prisoner was convicted of murder in Montour county, after a trial before the Judge of the district to which that county had been transferred. It was objected on behalf of the prisoner there, as in this case, that the act of the Legislature was equivalent to an appointment of a Judge for that county without an election, and was, therefore, under the Constitution of Pennsylvania, void.

What the court say in reply to this argument is so pertinent that we quote it as applicable to this case, viz.: "A very important question upon the constitutional power of the Legislature so as to alter judicial districts as to transfer a Judge to the courts of certain counties who was never voted for in those counties, was intended to be raised by this plea; but, unfortunately for the prisoner, it cannot be raised in this form. His plea admits that Judge Jordan" (before whom the trial was had) "is a Judge de facto; and if it did not admit this, we would take judicial notice of the legislation which placed him in the courts of Montour county, so far as to hold him to be a Judge de facto. That legislation is at least a colorable title to his office. Can the right and power of a Judge de facto, with color of title, be questioned in any other form than by quo warranto, at the suit of the Commonwealth? Assuredly not.

That a private relator could not test the validity of a judicial commission, even by quo warranto, was decided in Burrell's Case, 7 Barr, 34, and the principle has been applied in a variety of other cases. See 7 S. & R., 386; 2 Rawle 139; 16 S. & R., 144; 2 W. & S. 37; 8 Harris, 415; 5 Mass. 230; 4 Gill & Johnson, 1; 10 B. & C., 230; 11 Ad. & Ell., 949.

But if a private suitor may not, by the appropriate process, question a Judge's commission when he (the Judge) has a chance to be heard in defence of his right, much less may such a suitor do it collaterally in an action to which the Judge is not a party, and where he cannot be heard by himself or counsel.

If this defendant may plead to the jurisdiction of the Judge, every defendant in Montour county, whether in civil or criminal proceedings, may do the same; and Judge Jordan, instead of trying the rights of parties, will be continually engaged in defending his own. Not merely in defending them, but in adjudicating them, contrary to that...