Diggs v. State, 49 Ala. 311

Lead Opinion

BRICKELL, J.

— A defendant must be indicted by his true name, or by the name by which he is generally known and called. If neither of these was known, at common law he was indictable as a person whose name was unknown to the grand jury, accompanied with some averment of fact identifying him. The statute now changes this rule of the common law, so far as the averment of a fact identifying the accused was necessary. R. C. § 4113. The identity of the person charged, and of the person arraigned to answer, is the requisition and object of the laws. Hence it follows, the accused, when his name is not unknown, is not identified, unless his real name, or that by which he is generally known and called, is used. The insertion or omission of a middle name, or of the initial thereof, is immaterial. Edmundson v. State, 17 Ala. 179. If a person is in the habit of using initials for his Christian name, and is indicted by these initials, the fact whether he is so known may be put in issue; and if the issue is proved against him, he may properly be convicted. City Council v. King, 4 McCord, 487.

In this case, if the appellant used his name as “ J. Sheppherd Diggs,” so that thereby he was generally known and called, this is proper matter of replication to the plea ; and he would, if it is true, be bound to answer the indictment. The plea on its face is good, and, if interposed before the plea of not guilty, should not have been stricken out as frivolous. A plea not subject to demurrer, and interposed in the regular order of pleading, should never be stricken out on- motion; and it is generally the better practice to put the party on his demurrer. Johnson v. McLaughlin, 9 Ala. 551. An indictment against a defendant by the initial of his Christian name, or by .his middle name only, or by the initial of his first and his middle name, is, primd facie, subject to a plea in abatement. If the indictment, in that form, uses the name of the defendant as it is generally known and called, that must be replied to the plea. We are not sure that the record affirmatively shows this plea to have been filed before the plea of not guilty was interposed, and that we could reverse because of the action of the court in striking it out. As the judgment must be reversed on other grounds, it is not necessary to determine that question.

2. The demurrer to the indictment was properly overruled. It is drawn to a greater length than is usual, or than is necessary under our present statutes. It conforms to approved precedents at common law, and avers every ingredient of the offence imputed to the accused. He could not mistake the offence charged; and, on conviction, no court could doubt the judgment to he rendered. As a general rule, we- think it may safely be asserted, that an indictment good at common law is good under our statutes. That the time of committing the offence is expressed in figures, not in letters, if objectionable at common law, under the authority of State v. Raiford (7 Porter, 102), is not an objection merely, because the statute dispenses with a statement of the time when the offence was committed. Molett v. State, 33 Ala. 408.

3. The State was perniitted, against the objection of defendant, to prove by the solicitor pro tem. that he acted as solicitor at the time the grand jury investigated the charge against the appellant; that, at the request of the grand jury, he telegraphed to L. Brewer & Go. for the draft drawn on them by Hill, and charged to have been given to defendant as a bribe; that he received a letter in reference to said draft, which was in the handwriting of a member of the firm of Brewer & Co., and that this letter had been lost or mislaid. For what purpose this evidence was admitted, we are not informed by the bill of exceptions, nor can we see its relevancy to the issue to be tried. The only question before the jury was, whether the defendant had corruptly received, or agreed to receive the draft, while in the official position of county solicitor. The corrupt reception, or the corrupt agreement to receive, consummated the offence, though the draft was never paid. In no aspect of the case presented by the record was it necessary for the State to show how the solicitor obtained possession of the draft. If the evidence was designed to aid in identifying the draft, or to prove its payment, the correspondence between the solicitor and the drawers was not admissible. As the evidence is now presented, it was irrelevant, and should not have been received. Its admission may not have prejudiced the appellant, and we do not see that it was capable of working any special injury to him; but we cannot see clearly -that it did not. The rule often announced by this court is, that the admission of irrelevant testimony will reverse, unless the record clearly shows that no injury would have- resulted. It is not enough that we cannot discover injury ; we must see clearly that none could have resulted. Frierson v. Frierson, 21 Ala. 549; Pool v. Devers, 30 Ala. 672; Mayer v. Clark, 40 Ala. 259.

* 4. There was not a substantial variance between the draft offered in evidence and the draft described ■ in the indictment. The indictment does not purport, and it is not necessary in this case it should, to set out the draft according to its tenor or precise recital. 1 Bish. Cr. Pr. § 554. The variance is supposed to arise from the fact, that in the indictment the draft is described as for “two hundred'and ninety-eight TV1T dollars,” and is dated “ May,T870; ” while the draft offered in evidence is for two hundred and ninety-eight dollars, and is dated May 14, 1870. It would have been sufficient, in this case, to have averred in the indictment that the appellant received a draft, drawn by Hill on Brewer & Co., for the payment of money, without describing its date, amount, or time of payment. The character or amount of the thing received, or agreed to be received, so that it appears to have been of value, is not material; the draft offered in evidence substantially conformed to the description in the indictment, and the objection of the appellant was probably overruled. The evidence of the solicitor was inadmissible and unnecessary; and as the court should, without it, have overruled the objection, its admission is not a reversible error.

5. The charge given by the court is objected to as erroneous, because it asserts that it was the province of the jury “ to discard and treat for naught any part of the evidence.” Without explanation, this charge may have induced the jury to suppose that they had power, capriciously or arbitrarily, to reject any portion of the evidence. This is not the power or province of the jury. They cannot reject evidence, unless they regard it as unworthy of credit, because the witness has been successfully impeached; or because he had been contradicted ; or because of its inconsistency in itself, or with other evidence in the . cause; or because the manner of the witness leads them to regard him as not worthy of belief; or for some other substantial reason. The tendency of this charge may have been to mislead the jury. Such a charge is not, however, a reversible error. The party objecting should have asked an explanatory charge, and thus obviated or removed its tendency to mislead. Abraham & Bro. v. Nunn, 42 Ala. 51; Scully v. State, 39 Ala. 240.

6. It is next objected that the charge asserted a county solicitor is a ministerial officer, subject to indictment under section 3564 of the Revised Code. In this we are of the opinion there was no error. If a county solicitor is not a ministerial officer, it would be difficult, if not impossible, to define his character ; all the duties with which he is charged pertain to the protection of the State, and the general administration of the criminal laws. He attends on the grand jury, as their legal adviser ; draws the indictments they may find ; prosecutes all indictable offences, and prosecutes or defends any civil action to which the State is a party, pending in the Circuit Court. R. C. § 856. No one of these duties involves executive or judicial functions. They are purely ministerial. In the charge given there is, therefore, in this respect, no reversible error.

7. This brings us to the material question this case presents. The defendant not being county solicitor de jure, is he indictable for malfeasance in office while displacing the solicitor de jure ? That there may be an officer de faeto, while there is an officer de jure ; or, in other words, though an office is not vacant, and there is an existing officer de jure, one who enters into and assumes its duties, under color of appointment, will be an officer de facto, is a proposition maintained by all the authorities we have had an opportunity of consulting. In Garner v. Clay (1 Stew. 132), the acts of a sheriff de facto were deemed valid, although there was another person who had been elected to the office, and, of consequence, was entitled to it de jure. In Flournoy v. Clements (7 Ala. 535), the sheriff elect qualified, gave bond, and entered on the discharge of the duties of the office. Subsequently, the judge of the County Court, under a statute then of force, vesting him with jurisdiction, declared the office vacant, and it was filled by executive appointment. The judgment declaring the office vacant was reversed by this court. The judgment of reversal, of course, rendered the judgment of the County Court judge mere waste paper. It was converted into a nullity, and could not subsequently be regarded as having ever had a legal existence. The office was, therefore, never vacant; yet this court held the person acting under executive appointment, while the judgment of vacancy was unreversed, a sheriff defacto. In Thompson v. State (21 Ala. 48), the Commissioners’ Court, in the exercise of its statutory power, appointed an overseer of a public road. Subsequently, the judge of the County Court, who had power only to fill vacancies occurring after the Commissioners’ Court had appointed, without a vacancy, appointed another person, who assumed to act. This court held that, although there was not a vacancy for the judge of the County Court to fill, and although there was an overseer de jure, the overseer so appointed must be regarded as an overseer de facto. In Gregg v. Jennison (55 Penn. 468), it is held, that an officer defacto is a person who is such by color of election, though ineligible, or though the office was not vacant. The same principle is asserted in Angelí & Ames on Corporations, § 287.

It is unquestionably true that under-the Constitution and. laws of this State there can be in each county but one legal county solicitor, or but one legal county treasurer, or sheriff, or clerk of the Circuit Court, or judge of probate; but to declare that there cannot be,, as to each of these offices, an officer de jure and an officer de facto, would go very far towards declaring that there was not in law an officer de facto. The law deems it of high importance to have all offices filled by the persons legally and constitutionally entitled to hold them. It discourages and discountenances all intrusion into office, or usurpation of its authority. It affords the State, and the rightful claimant, every facility to oust an intruder or usurper. While the law is mindful of the importance of having the rightful officer in place and power, it deems it of more real, practical importance to be able to deal safely with those who are actually in place. On this principle, necessary to the safety of the citizens, to the keeping of governmental organization in motion, and to the just and speedy administration of the law, rests the whole doctrine of officers de facto. As was said by this court in Heath v. State (36 Ala. 273), the authorities may not be uniform in the definition of an officer de facto, “ but they all concur in recognizing as such any person who exercises the duties of an office under color of an appointment or election to that office.”

If the defendant was at any time solicitor of the County of Dallas, he was so by appointment. That appointment he derived from the judge of the Circuit Court of the first judicial circuit, of which Dallas forms a part. That judge only, under the Constitution, had the power of appointing to the office of solicitor. His appointment, though defeasible and invalid, is color of title. If the defendant accepted the appointment, and exercised the duties of the office, he was an officer de facto, though there may have been a solicitor de jure claiming the office. The law, so long as he kept in the line of his official duty, would have extended him the protection afforded the rightful officer. Official responsibility, civil and criminal, is but just compensation for this protection. When he is called to answer for malfeasance, he cannot be permitted to assail the validity of his appointment; he is estopped from abnegating his official capacity. 1 Bish. Crim. Law, § 917.

In Rex v. Berdett (6 Car. & P. 124), a letter-carrier was indicted for embezzling an overcharge on a letter delivered to him. No evidence of his appointment as a letter-carrier was offered; but one of the witnesses incidentally stated that he acted as such. The statute under which he was indicted prohibited and punished embezzlement by public officers. The court submitted the fact of embezzlemefit, and the question whether the prisoner had acted as letter-carrier, to the jury, declaring that if the two facts concurred, the prisoner was guilty; and he was convicted. In Allen v. McNiel, 1 Mills (S. C.), it is said, “ When a person is sued for any act done by him in an official capacity, it does not lie in his mouth to say he is not the person he has held himself out to the world to be.” In State v. McEntyre (3 Ired. 174), the court held : “ A person who undertakes an office, and is in office, though he might not have been duly appointed, and therefore may have a defeasible title, or not have been compellable, to serve therein, is yet, from the possession of its authorities and the enjoyment of its emoluments, bound to perform all the duties, and liable for their omission, in the same manner as if the appointment were strictly legal and his right perfect.” In State v. Mayberry (3 Strobh. 144), a constable was indicted for suffering a negligent escape, and was held liable, though not an officer de jure; and the court said, “ It would be dangerous if he were permitted to evade liability by proving he is not an officer de jure.”

It is difficult for us to conceive of a more evil and dangerous proposition, than that one who intrudes into or usurps a public office, assumes its duties, and exercises its powers, can commit official crimes and shield himself from punishment by alleging that his crimes were only additions to his intrusion or usurpation. Admissions, on which another is induced to act, become conclusive on the party making them; and it is immaterial whether they were made innocently or fraudulently. McCrary v. Remsen, 19 Ala. 430; Harrison v. Pool, 16 Ala. 167; Stone v. Britton, 22 Ala. 543. If this be true, what satisfactory reason can be given for not applying the same principle to one who deliberately assumes and exercises the duties and powers of a public office ? He holds himself out to the world as an officer ; he becomes entitled to protection as such ; he can exercise the duties, and take the emoluments, until he is ousted; and he must be amenable, as if he was the rightful officer. In the charge given by the court there was, therefore, no error.

8. Nor did the court err in refusing to charge that, if Haney was the rightful solicitor, both he and the defendant could not hold the office generally, and discharge all the duties of office at the same time. This charge was calculated to mislead the jury, and to divert their attention from the real issue to be tried. Haney’s right to the office is not involved in this case. That right may be fully conceded. So far as the office is an element of the crime imputed to the defendant, the inquiry, and the only inquiry, is, did the judge of the Circuit Court make the appointment set out in this record ? did the defendant accept that appointment, and act under it ? If he did, without regard to who was the rightful solicitor, he is liable to this indictment.

9. In refusing to charge that if the defendant did not act under the appointment he should be acquitted, the court erred. Acceptance of the appointment was necessary to fix official character on the defendant. This acceptance may be proved by the acts of defendant, and by his claiming to hold the office. But, without evidence of acceptance, he should not be convicted. That is as essential to his official capacity as an appointment.

For the error we have noticed, the judgment is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.

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Concurrence Opinion

B. F. SAFFOLD, J.

— I concur in the opinion of Justice Brickell, and, as a supplement to it, I read the following expression of my views on points not directly treated of by him.

The indictment charged the defendant, under R. C. § 3564, in three counts, with accepting a bribe as solicitor of Dallas County. On the trial he denied his character as such solicitor, basing the denial on the fact that another was, at the time the offence was alleged to have been committed, the duly elected and qualified incumbent, and two persons could not hold the said office and perform the duties thereof at the same time. The state Constitution created the solicitor’s office ; and it requires that he shall be elected in each county by the electors thereof, and shall perform such duties as may be required of him by law. He shall hold office for a term of four years; and in case of vacancy, such vacancy shall be filled by the judge of the circuit, until his successor is elected and qualified. The legislature has not prescribed the duties of this officer. All of the statutes in the Revised Code relate to the circuit solicitor then in existence. Many of them are inapplicable to the present county solicitor; and such of them as have been applied to him in practice and usage have been so applied on account of their fitness to. the acquired meaning of the term “ solicitor,” as a political officer of the State, rather than from any presumed or construed regulation of his duties by the legislature.

Section 859 of the Revised Code, in authorizing the presiding judge, when the solicitor is absent, or it would be improper for him to act, to appoint a competent attorney in his place, only recognizes, or declares, what is the inherent right of the court. The court, as the guardian of justice, is the representative of all suitors, and, in criminal cases, it can suffer neither the State nor the accused to be undefended. As this section (859) was not adopted in direct application to the county solicitor, and is a part of the regulation of a distinct officer, it cannot have the effect to limit or vary the power which the court has inherently to supply the place of the county solicitor who for any cause is not acting. As the Constitution bestows the power of appointment, in case of a vacancy, on the judge of the circuit, and it is the duty of that judge to see to the proper enforcement of the criminal law, both in term time and in vacation, except when he is displaced in term time by a presiding judge, an appointment of solicitor made by him at any time cannot technically be said to be void. The duties of solicitor are not confined in performance to the terms of the court; for instance, he must issue subpoenas in vacation to witnesses to appear before the grand jury. When he is not acting, unless the judge of the circuit can supply his place, no other is authorized to do so, and there must be a failure of justice. The conclusion is, that the judge of the circuit, from his power to appoint to a vacancy, and his duty as a conservator of the peace, must be authorized to supply any lapse in the service of the solicitor; and that, having jurisdiction of the subject matter, no appointment he may make is ip>so facto void, however irregular and subject to be set aside. If, then, the party appointed accepts the position, and performs the duties of the office, and while in the exercise of the rights, privileges, and responsibilities thereof, commits, as such officer, what the law denominates crime, he cannot defend on the ground that he was not solicitor de jure.

As to whether the defendant was appointed to the office charged in the indictment to have been held by him, the transcript shows the following: “ April 1st, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tem. of this court, until further ordered.” “ At Chambers, October 17th, 1870. Ordered, That the order heretofore made appointing Sheppard S. Diggs solicitor pro tem. of this court until further ordered, be hereby revoked, and that S. W. John be appointed solicitor pro tem. until further order.” Whether the appointment thus made ought to be construed as filling entirely the office of county solicitor temporarily of not, it authorized the appointee to act as such in matters pertaining to the Circuit Court, and was color of title for as much more as he assumed to do. Therefore, proof of such an appointment, and of acceptance and service under it by the defendant, would constitute him a defacto county solicitor, and subject to prosecution for malfeasance.

That a de facto officer is subject to all the pains and penalties of a de jure officer is abundantly shown by the following authorities: 1 Bish. Crim. Law, § 917; 2 Bish. Crim. Law, § 378; 1 Gab. Crim. Law, 783; The State v. McEntyre, 3 Ired. 171, 174; The State v. Sellers, 7 Rich. 368, 372; People v. Cook, 4 Seld. 67; Rex v. Borrett, 6 Car. & P. 124; 3 Hawkins Pl. C. 261, § 28.

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Concurrence Opinion

PETERS, C. J.

— I concur in the judgment of reversal in this case, and the argument of the majority of the court, except upon what may be considered the question of chief importance in this prosecution. That is this : Was the accused a “solicitor in the County of Dallas,” or a “ municipal officer of court,” on the day he received the bill of exchange, or draft, from Hill, in May, 1870, which constitutes the offence for which he is indicted ? If he was not, then this necessarily puts an end to this prosecution, so far at least as it may rest upon a criminal charge under our statute.

The law denouncing bribery as a crime is in these words: “ Any ministerial officer of any court, or any person summoned as a juror, or appointed an auditor, arbitrator, umpire, or refereé, who corruptly takes, or agrees to take, anything, to give his verdict, award, or report, or corruptly receives, or agrees to receive, any gift or gratuity whatever, must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than five years.” Rev. Code, § 3564.

It will be seen that this section of the Code designates six classes of persons, filling certain offices, who are forbidden to take or receive, or to agree to take or to receive, a bribe. That is to say: 1, a ministerial officer of court; 2, a juror; 3, an auditor; 4, an arbitrator; 5, an umpire; 6, a referee.. That these persons are so singled out and defined is an indication of the legislative intention that no other persons are intended to be included in the enumeration. Penal statutes are to be strictly construed; and where there is doubt as to the person intended, the party accused is entitled to the benefit of such doubt. Chase v. N. Y. Cent. R. R. Co. 26 N. Y. Rep. 523; Dwarris on Stats, pp. 245, 246, Potter’s ed. 1871. No doubt a solicitor in the county is an officer of court, who falls under the penalties of the above-quoted law. But was the accused such officer, at the time he is charged to have committed the act which is charged against him as a crime ?

A solicitor in a county is a constitutional officer. The Constititution directs how that officer shall be elected or appointed to office. The words of the constitutional command are these : “ A solicitor shall be elected in each county in this State, by the qualified electors of each county, who shall reside in the county for which he is elected, and perform such duties as may be required of him by law. He shall hold his office for a term of four years, and, in case of a vacancy, such vacancy shall be filled by the judge of the Circuit Court, until his successor is elected and qualified.” Const, of Ala. 1867, Art. VI. § 17. The solicitor thus elected or appointed must be commissioned by the governor. Rev. Code, § 148. The Constitution having assumed to regulate the appointment of this officer, can he be appointed in any other way ? I think not. Upon the clear and often asserted principle, that the thing expressed excludes the thing omitted, there can be no solicitor in the county, unless he is elected by the people, or appointed by the judge of the circuit, in the mode above directed. Exprés sum facit cessare taciturn. Smith Constr. of Stats. § 390, 2d ed.; Dwarris on Stats, p. 221, Potter’s ed. 1871. This salutary rule ties up the hands of the court, and forbids judicial legislation, which is equally obnoxious to sound principle and to the Constitution itself. Const, of Ala. 1867, Art. III. § 1; Dwarris on Stats, p. 215, Potter’s ed. 1871.

The evidence shows that there was no vacancy in the office of solicitor in the County of Dallas at the time of the appointment of Diggs ; and the order of the court shows that the appointment was not made to fill a vacancy. It is expressed in these words: “April 1, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tern, of this court, until further orders.” Under the Constitution, the appointment, if to fill a vacancy, continues “ until his successor is elected and qualified.” Const, of Ala. supra. This is all the appointment the judge of the circuit can make to the office of “ solicitor in the county ; ” and this can only be made to fill “ a vacancy.” If there is no vacancy, the judge acts without jurisdiction, and in violation of the Constitution; and his act is wholly void, and a nullity. 21 How. 506; 22 Barb. N. Y. 271; 13 Ill. 432. A court, or judge, acting under special powers, has only the jurisdiction expressly delegated ; and the facts must show that the right of jurisdiction exists. Collier’s Adm'r v. Windham, 27 Ala. 291; Pearson & Wife v. Darrington, 32 Ala. 227. In this case the proof shows that Haney was still the rightful solicitor in the county, and as such he claimed the office and its fees. Diggs, then, could not be solicitor. Any attempt to intrude him into that office was a clear usurpation, wholly unwarranted by law. Such a tenure of office does not create him a solicitor de facto. He does not hold under any color of right whatever, but wholly in defiance of law and right, and also of the public policy, embodied in the Constitution of the State. Const, of Ala. 1867, Art. VI. § 17, supra. The charge of the court objected to was, therefore, erroneous.

The Code authorizes the “ presiding judge,” in certain cases, to appoint a competent attorney to act in the place of the solicitor. This authority is given in these words : “ The presiding judge, when the solicitor is absent, or when he is connected with the party against whom it is his duty to appear by consanguinity or affinity within the fourth degree, must appoint a competent attorney to act in his place.” Rev. Code, § 859. This is not a power to make a solicitor, but to appoint “ an attorney ” to act in his place pro hac vice. This appointment is not made by the judge of the circuit, but may be made by any “ presiding judge ” of any court, when an attorney for the purposes above named is needed; and the appointment ends with the termination of the term of the court for which the appointment was made, or with the final disposition of the case or cases that required it to be made. This temporary appointment may be made as often as the exigencies require it; and it must be made by “ the presiding judge,” whether he may be the judge of the Circuit Court, or of the Criminal Court. The power under this section of the Code is given only to the presiding judge ; and it may as well be exercised by the judge of a city or criminal court, as by a circuit judge. Under this act, each court may have its own attorney to act in the place of the solicitor; but he cannot, as such, claim the office of solicitor in the county. Such attorney, if he accepts the appointment, is a ministerial officer of the court in which he is appointed to act; and, as such, he is punishable for the offence of bribery. Beyond this, the solicitor, duly elected or appointed, and commissioned by the governor, is the only solicitor known to the Constitution of the State, and the laws of the State having constitutional validity. The Constitution is a limit on the Code. The act adopting the Code excepts out of the legalization of that body of laws “ such as conflict with the Constitution and laws of the United States, or the Constitution of this State.” Acts of Ala. p. 7, “ An act to continue in force certain laxos."

The attorney appointed by the presiding judge, under the above quoted section of the Code, is not a de facto officer of court, but he is an officer de jure. And, with the highest respect and consideration for the opinion and legal learning of the majority of the court, I think there is not the slightest necessity for resorting to the doctrine of officers defacto in this case. Under the Constitution, there can be but one solicitor in the county at the same time, clothed with lawful authority to discharge all the duties of that office ; and this solicitor is, necessarily, an officer de jure ; and he should be commissioned by the governor, and should take the oath of office required by the Constitution. Const, of Ala. 1867, Art. YI. § 17 ; also Art. XY. § 1; Rev. Code, § 148. On the other hand, the attorney appointed by the presiding judge need not be commissioned by the governor, and he need not take any official oath. His office is also an office de jure. He holds under a legal and sufficient authority.

For these reasons, it is my conviction that the learned judge in the court below should have given the second, charge asked by the accused on the trial below, as well as the first; and for this, in addition to the reasons stated in the opinion of the majority of the court, the judgment of the court below should be reversed and remanded.

Case Details

Case Name: Diggs v. State

Court Name: Supreme Court of Alabama

Date Published: Jun 15, 1873

Citation: 49 Ala. 311

Court Abbreviation: Ala.