State v. Blancett

• Decision Date: 16 July 1918
• Docket Number: No. 2191.,2191.
• Citation: 174 P. 207,24 N.M. 433
• Parties: STATEv.BLANCETT.
• Court: New Mexico Supreme Court

24 N.M. 433

174 P. 207

STATE

v.BLANCETT.

No. 2191.

Supreme Court of New Mexico.

July 16, 1918.Rehearing Denied Aug. 6, 1918.

Syllabus by the Court.

Three requisites are necessary to constitute one an “officer de facto”: (1) The office held by him must have a de jure existence, or at least one recognized by law; (2) he must be in actual possession thereof; and (3) his holding must be under color of title or authority.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Officer De Facto.]

The title of an officer de facto, and the validity of his acts, cannot be collaterally questioned in proceedings to which he is not a party, or which were not instituted to determine their validity.

It is relevant to show that the accused or an accomplice had money or other property in his possession which was the fruit of the crime.

The fact that defendant attempted to commit suicide was a circumstance which was properly to be taken into consideration by the jury in connection with all other facts and circumstances proven.

Remarks of bystanders unfavorable to the accused, to or in the presence of members of the jury, and overheard by them, although reprehensible, are not ground for a new trial, unless it shall actually appear that a verdict of conviction was produced thereby.

When a party asks for a new trial on the ground of newly discovered evidence, he must show that such evidence could not have been discovered prior to the trial by the exercise of due diligence.

The mere fact that one or more of the jurors were, after their retirement and before the verdict, separated from the others, is not ground for a new trial, unless it appears that defendant was prejudiced thereby.

Additional Syllabus by Editorial Staff.

The prosecuting officer's exhibition of articles of personal property, models, weapons, implements, etc., by way of illustration, and their examination by the jury, is not error, whether the articles are in evidence or not.

Any error in remarks of the district attorney was cured, where the court, on defendant's objection and request, admonished the jury to disregard argument upon any other consideration than that of the law and the evidence.

Where the court on defendant's objection and request admonished the jury to disregard remarks of the district attorney, and defendant made no further request and saved no exception to such action, any error was not saved in a manner entitling defendant to a review.

Appeal from District Court, Santa Fé County; Abbott, Judge.

E. W. Blancett was convicted of homicide and sentenced to death, and he appeals. Affirmed.

The title of an officer de facto, and the validity of his acts, cannot be collaterally questioned in proceedings to which he is not a party, or which were not instituted to determine their validity.

A. B. Renehan, of Santa Fé, for appellant.

H. L. Patton, Atty. Gen., and C. A. Hatch, Asst. Atty. Gen., for the State.

HANNA, C. J.

The appellant, E. W. Blancett, was indicted, tried, and convicted in the district court of Santa Fé county for the murder of Clyde D. Armour. From the judgment of the court imposing a sentence of death, the appellant has prayed this appeal, alleging as a first ground of error that Hon. Edmund C. Abbott was not judge of the district court for Santa Fé county at any time pertaining to the trial of said case.

[1] This assignment of error is based upon several propositions: First, that at the time of the trial Judge Abbott was a colonel of the New Mexico National Guard actively engaged in the service of the United States government, and that the two offices, colonel of the state troops and judge of the district court, are incompatible. Second, Judge Abbott by his retention of his military office vacated his office as judge, so that when he attempted to exercise the functions of judge of the district court he was an intruder and usurper. A further proposition is also urged to the effect that, by a voluntary enlistment or entry into the military service of the United States, Judge Abbott vacated or abandoned the civil office through the undertaking of his military duties. After a careful consideration of the briefs and argument of counsel, we have concluded that it is unnecessary to determine, for the purposes of this case, whether or not Judge Abbott was a judge de jure. That he was a judge de facto, we have no doubt. Constantineau on the De Facto Doctrine, § 26, prescribes three requisites as necessary to constitute one an “officer de facto”: (1) The office held by him must have a de jure existence, or at least one recognized by law; (2) he must be in actual possession thereof; and (3) his holding must be under color of title or authority. The author says that without the existence and concurrence of these three elements no person can be regarded as an officer de facto. This view is concurred in by Mechem on Public Officers, §§ 317-326, inclusive; 29 Cyc. 1390 et seq. An instructive case more nearly in point than any other called to our attention is that of Oliver v. Jersey City, 63 N. J. Law, 634, 44 Atl. 709, 48 L. R. A. 412, 76 Am. St. Rep. 228. In this case it was held that:

“An officer legally elected and qualified, who enters upon the duties of his office, and afterwards is appointed to and accepts another office, but in good faith continues to publicly discharge the duties of the first, his term not having expired, and no successor having been appointed or elected in his stead, nor any adjudication made against his title, is an officer de facto.”

We agree with the holding of the New Jersey court and find it decisive of the case at bar.

In arriving at this conclusion we are not unmindful of appellant's contention that he did not deal with Abbott as judge, but raised the question promptly and persistently in his challenge throughout the course of the trial. This we will give further consideration.

If Judge Abbott were to be considered, or should be considered, an intruder or usurper into the office of district judge at the time of the trial in the district court, there would doubtless be merit in appellant's position; but in the light of our holding in the Haymaker Case Judge Abbott cannot be so considered. In Haymaker v. State ex rel. McCain, 22 N. M. 400, 163 Pac. 248, L. R. A. 1917D, 210, this court held that, though offices are incompatible under the statutory rule providing that an office becomes vacant when an officer accepts and undertakes to discharge the duties of another incompatible office, yet under the provisions of the Constitution no public office becomes vacant in the sense that a corporeal vacancy arises, but a condition results conferring a right on the appointing or electing power to appoint or elect some person to the office in the place of the occupant. Our conclusion in the Haymaker Case is based upon the constitutional provision that:

“Every officer unless removed, shall hold his office until his successor has duly qualified.” Section 2, art. 20, Const. 1.

It is unnecessary to decide whether the two offices of colonel and district judge are in fact incompatible, as in our view of the matter it might be conceded that they are, nevertheless there was no actual vacancy in the office of district judge under our holding in the Haymaker Case, and there cannot be any serious contention that the acceptance of the military office created a corporeal vacancy in the civil office.

[2] Reverting to appellant's argument that, because he challenged the authority of Judge Abbott, he may be permitted to raise the question here, we have this to say: That it has been generally held:

“That the title of the officer de facto, and the validity of his acts, cannot be collaterally questioned in proceedings to which he is not a party, or which were not instituted to determine their validity.” Mechem on Public Officers, § 330.

See, also, 23 Cyc. 621; In re Manning, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264; Throop on Public Officers, § 651; Commonwealth v. Taber, 123 Mass. 253.

In the Massachusetts case it was contended that the holding of the executive office of mayor of the city of New Bedford being an incompatible office, precluded the exercise of judicial power by the incumbent as a judge within the same territory. The court said:

“*** He was at least a judge de facto, his jurisdiction could not be controverted upon this ground, nor the question whether the two offices were incompatible be tried, in a proceeding to which he was not a party.”

See, also, Ex parte Sheehan, 122 Mass. 445, 23 Am. Rep. 374. In 15 R. C. L. p. 519, the rule is thus stated:

“The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone.”

The author continuing states that the rule is the same in civil and criminal cases, and that the principle is one founded in policy and convenience, for the right of no one claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it were necessary in every case to examine the authority of such officer to its original source.

Appellant seriously contends that, by reason of the fact that under article 3 of the state Constitution no person charged with the exercise of powers properly belonging to one of the departments of government shall exercise any powers properly belonging to any of the others, except as in the Constitution otherwise expressly permitted, Judge Abbott was not eligible to or capable of holding the office of judge. We deem it unnecessary to consider the authorities cited, because, in our view of the matter, it might be assumed that Judge Abbott was disqualified in the respect...