State v. Myers

• Decision Date: 25 October 1886
• Parties: STATE v. MYERS.
• Court: Tennessee Supreme Court

5 S.W. 377

85 Tenn. 203

STATE v. MYERS.

Supreme Court of Tennessee.

October 25, 1886

Appeal from circuit court, Marion county; D. C. TREWHITT, Judge.

FOLKES J.

This indictment for horse-stealing was quashed on motion of defendant in error, and the case is brought here by the state, to reverse the action of the circuit court of Marion county. There were two grounds assigned in support of the motion:

First. That the indictment does not state the property stolen. This was properly overruled, as it was based alone on the misspelling of the word "marie;" the court holding that a mare was none the less a horse because spelled "mair."

Second. The second ground was that the indictment is signed A. A. Hyde, "district attorney," instead of "attorney general;" it being claimed that there is no such officer as district attorney recognized by law in this state. The contention of counsel for defendant is placed mainly upon the cases of Teas v. State, 7 Humph. 174, where it was held that an indictment signed by the prosecuting officer, styling himself "solicitor general," was void, because there was no such officer known to law; and Greenfield v. State, 7 Baxt. 18, where the indictment was signed "A. J. CALDWELL, Attorney General," which was claimed as error, it being insisted that the proper style of this officer, after the constitution of 1870, was "attorney for the state." In this case, combating the idea that an indictment was void because the officer had not styled himself "attorney for the state," Judge MCFARLAND, rendering the opinion, in reviewing the legislation on the subject, says: "Previous to the constitution of 1834, by the acts of 1833, c. 52, § 1; 1825, c. 272, § 2; 1833, c. 43, § 1,--this officer is styled an 'attorney general.' In the act of 1827, c. 49, § 12, he is styled as a 'solicitor.' The constitution of 1834 enacted that the legislature shall elect 'attorneys for the state.' The act of 1835 provided that each judicial circuit should constitute a solicitorial district, for which there should be elected by the general assembly one 'attorney general.' The constitution of 1870, art. 6 § 5, enacts that 'an attorney for the state, or any circuit or district for which a judge having criminal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district;' and that, 'in all cases where the attorney for any district fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore."' The indictment in the case at bar having been found in 1866, the constitution of 1870 is only quoted to more fully illustrate the decision in the case in 7 Baxt. The language of the constitution of 1834 is substantially the same as that of 1870.

We find, then, that in the case of Greenfield v. State the court held that notwithstanding the fact that this officer is styled in the constitution, and in some of the acts of the legislature, as the "attorney for the state," he was also long known and styled as "attorney general," and that the latter title was a proper one to be affixed to his official signature on an indictment. But this case does not decide that "attorney general" is the only proper title for this officer, nor does it decide that any title is essential. In the conclusion of the opinion the learned judge uses the following language: "Besides, the court takes judicial knowledge that A. J. Caldwell was the proper officer to prefer this indictment, and his having designated himself by the title which has been used for more than fifty years does not throw doubt upon the question." Now, we have already seen that this officer is referred to in the constitutions of 1834 and of 1870 as "attorney for the state," while a reference to our statutes shows that he is called indifferently "attorney general" and "district attorney." He is called "district attorney" in the Code at sections 5090, 900, 3952, 2310, 669, 3961, 5596, 5598, 5599, 5568, 1557, and many others; while in sections 317, 879, 885, 5426, 3962, 3963, 4964, 5600, and numerous others he is called "attorney general." That the terms are used as convertible does not seem to admit of doubt. If there be any difference in the frequency of the use of one over the other, it appears to be in favor of the "district attorney." Not only have our statutes used the titles interchangeably, but our judges have also so used them. Thus, in State v. Lockett, 3 Heisk. 274, it is said the statute requires that upon every indictment the "attorney general" shall indorse the names of the witnesses, etc., citing section 5596; and when we turn to this section we find that "attorney general" does not appear in it at all, but only the title "district attorney." It is a little curious to note that in the article of the Code just referred to there are eight sections referring to this officer, in four of which he is called "district attorney," and in four he is designated "attorney general."

Were it not for the case of Teas v. State 7 Humph. 174, invoked by the counsel for the defendant, we might well let this opinion stop here; but the earnestness with which this case is pressed as an authority justifies us in adding that, even if "district attorney" were a title unknown to the law, it would not, in our opinion, vitiate the indictment, for the reason that this court will take judicial notice of who was the proper officer to prefer this indictment; and he need not add his official designation, if it sufficiently appear that he intended his signature to be official; and this may appear from the context. Thus, in Donohoo's Lessee v. Brannon, 1 Tenn....