Layne v. State

Decision Date05 February 1923
Docket NumberA-3603.
Citation212 P. 328,23 Okla.Crim. 36
PartiesLAYNE v. STATE.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court.

A special or substitute judge authorized to hold court outside of his district, by virtue of an order made by the Chief Justice of the Supreme Court ending on a Saturday night supplemented by another order beginning on Monday following under circumstances recited in the opinion, was probably a de jure judge during the intervening Sunday.

a. If not a de jure judge, he was at least a de facto judge during this Sunday, with power to supervise and control the jury and other court officers through executive and ministerial orders.

This court may look beyond the express terms of the Constitution (section 9, art. 7), and orders made pursuant thereto, to ascertain the true intent and object of the lawmakers and of the judge acting thereunder relating to the powers of a special judge, and where such intent and object is manifestly to carry out the lawmakers' intent an inadvertent omission of Sunday from the period in which the special judge is authorized to hold court, will not deprive such special judge of supervising power over court officers during this particular Sunday.

Additional Syllabus by Editorial Staff.

A judge de facto is one acting with color of right, and who is regarded and has the reputation of exercising the judicial functions he assumes.

Appeal from District Court, Latimer County; Geo. C. Crump, Judge.

Tom Layne was convicted of murder, and he appeals. Affirmed.

Tom W Neal, of Poteau, and Andrews & Anderson, of McAlester, for plaintiff in error.

S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

BESSEY J.

Tom Layne, plaintiff in error, was on March 18, 1919, in the district court of Latimer county, convicted of the murder of Powell Bobo, and sentenced to imprisonment in the state penitentiary for life. Plaintiff in error appeals.

Both the appeal and an application for a writ of habeas corpus, challenging the jurisdiction and authority of the Honorable George C. Crump, assigned judge, to preside at the concluding portion of the trial of the case after the 15th day of March, 1919, have been pending here for many months, and this question of jurisdiction is the only issue involved. No action has heretofore been taken in either case, because the plaintiff in error has been at liberty on parole or leave of absence, and hence not subject to the orders of this court.

The special judge in this case deraigned his power and authority to sit as trial judge herein by virtue of the following orders made by the Chief Justice of the Supreme Court of this state, to wit: "It having been made to appear as provided in section 8, art. 7, of the Constitution, that the public business requires it: Therefore, pursuant to the power vested in me as Chief Justice of the Supreme Court, I do hereby designate, appoint and assign Hon. George C. Crump, regular judge of the Ninth district court judicial district, to hold court at Wilburton, Latimer county, in the Fifth district court judicial district for two weeks, to wit, commencing Monday, March 3, 1919, to and including Saturday, March 15, 1919; it being a part of the provisions of this order that two or more district judges may sit separately in said district at the same time.

Witness, the Honorable Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma, at Oklahoma City, Oklahoma, this the 15th day of February, 1919. Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma."

Thereafter, on the 12th day of March, 1919, there was filed in the office of the court clerk of Latimer county, Okl., a second assignment of the Honorable George C. Crump to hold court at Wilburton, Latimer county, Okl., for one week commencing Monday, March 17, 1919, to and including March 22, 1919, as follows:

"It having been made to appear, as provided in section 9, art. 7, of the Constitution, that the public business requires it: Now, therefore, I, Summers Hardy, Chief Justice of the Supreme Court of the state of Oklahoma, do hereby designate, appoint and assign Hon. George C. Crump, regular judge of the Ninth district court judicial district, to hold court at Wilburton, Latimer county, in the Fifth district court judicial district, for one week, to wit, commencing Monday, March 17, 1919, to and including Saturday, March 22, 1919; it being a part of the provisions of this order that two or more district judges may sit separately in said district at the same time.
Done in chambers at Oklahoma City this 10th day of March, 1919. Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma."

The record shows that the trial of this case was commenced on March 13, 1919, and that before the trial began, to wit, on March 10, 1919, Mr. Justice Hardy made the second order, extending the period in which the special judge should preside and hold court in Latimer county until and including March 22, 1919. By reference to the two orders made by the Chief Justice, above quoted, it will be seen that there was an interval of one day, Sunday, March 16th, between the expiration of the first and the beginning of the second. The trial began on March 13th, and was not concluded until March 18th. It is now contended that there was no judge with authority to act on Sunday, March 16th; that the jury and the officers of the court were beyond judicial control all day Sunday; that there can be no court without a judge, and that the special term automatically ended on March 15th, and that all pending unfinished business likewise automatically ended at midnight Saturday, March 15th.

The authority for making the orders assigning a district judge in hold court in some district other than his own is found in section 9, art. 7, of the Constitution, as follows:

"In case of the illness of the judge elected in any district, or if for any other cause he shall be unable to preside in the district in which he was elected, the Chief Justice may designate any district judge in the state to hold any term of court in said district in lieu of the judge elected to hold the courts of said district. Whenever the public business shall require
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