Spradling v. State

17 Ala. 440 | Ala. | 1850

PARSONS, J.

The plaintiffs in error were convicted in the Circuit Court of Lauderdale county ‘of a conspiracy to commit the crime of burglary, by feloniously and burglariously breaking and entering the store-house of one Nathaniel B. Sturdevant, in said county, in the night time. The plaintiffs in error Sled two pleas to the indictment. By the first they alleged “ that this court ought not to have or take further cognizance of the charge in the said indictment above specified, because they say that the Hon. Sydney C. Posey, now presiding as judge in this court,-is by law incompetent to trj* and determine the said indictment; because the said Hon. Sydney C. Posey, as presiding judge, did hold the last term of this court, to-wit, the term held on the first Monday after the fourth Monday in March 1849;” and the plea further alleges that Judges of the Circuit Courts here are not competent by law to hold two courts in succession in the same circuit, unless called on to do so by the judge whose duty it was to hold such circuit, on account of sickness or other inability to attend, and the plea states formally that no' cause of that kind existed. The second plea alleges that the grand jury that found the indictment was organised at that term of the court by the same judge, gnd then his supposed incompetency is alleged, as in the first plea, as an objection to the grand jury. The solicitor demurred to each of the pleas and the demurrers were sustained by the same judge at the same term of the court; and now the main question in the cause is, was it right to sustain the demurrers ? This question leads us to consider the constitution so far as it relates to it, and the statute made in pursuance thereof. The authorities to which we have been refered by the counsel for the plaintiffs in error have been examined and attentively considered; and although this opinion is formed in view of them, it is not necessary that they should be particularly commented on.

The Circuit Courts have original jurisdiction, under the constitution, of all matters of litigation, whether criminal or -civil, with certain exceptions which need not be noticed in this place; and the State is divided into circuits by authority of the constitution, and it provides that there shall be appointed a judge for each circuit, who shall after his appointment reside in the circuit for which he may be appointed; and further, according to the constitution, the Judges of the Circuit Courts are to be conservators of the peace within their respective circuits. It is further provided by the constitution that the judges of the several Circuit Courts naay hold courts for each other when they may deem it expedient, and shall do so when directed by law. From this it is eyident that each judge of the Circuit Courts had plenary jurisdiction within his circuit, and that he might bold all the courts thereof; but that he might hold courts within another circuit, when deemed expedient, and should do so when required by law. There is nothing in the constitution to authorise .the idea that a judge’s jurisdiction within his own circuit was on any contingency to cease for a moment; but it is clear that additional duties might be performed by him, and in the event of a law to that effect, should be performed by him. This brings us to the act of 1819, the proviso of which is relied on by the counsel of the plaintiffs in error, and which is in these words: “Provided, that nothing in this act contained shall be so construed as to prevent the interchange of ridings by such judges in their several circuits in the manner hereinafter pointed out, that is to say, the judges holding the courts aforesaid shall so alternate that no one judge shall hold the courts of the same circuit for two courts in succession, unless called on to do so by the judge whose duty it may be to hold such circuit, on account of sickness or other inability to attend.” — Clay's D. 295, § 35. We think this proviso was intended to operate on the judges only, and not to confer any rights upon the parties, more especially those in whose causes the judge had no manner of interest. The proviso, as we think, was merely directory; and we understand that the circuit judges have for so long a time and so frequently acted upon this construction that st this late day we are not willing to declare their acts to be void, for this construction has from the first been plausible at least. Under any other construction it would be necessary to consider the constitutionality of the proviso, which as a statute taking away a jurisdiction given by the constitution, would be void. It is not denied by the pleas but that Judge Posey was the proper judge of that circuit. If he had been actually exercising the duties of that office only by color of right, it is at least questionable whether third persons or individuals of any class- could take advantage of the question of bis legal right to do so. S. C. Posey was even at that time judge da facto, at least of that circuit. He is not a party to this record and cannot be legally-heard in the discussion of these pleas, but our decision would as effectually decide on his authority to act in the circuit as a judge at that time as if he were a party. Hence the question whether an officer holds de facto or de jure, is t© be made by a proceeding directly against him and to which he is a party.— Fowler v. Bebee et al. 9 Mass. R. 231. And this principle has beeii thought to apply to a judicial officer in questions only-concerning third persons or the public. — McInstry v. Tanner, 9 Johns. R. 135 ; The People v. Collins, 7 ib. 552. Besides-there are English and Pennsylvania authorities-upon the general question, which need not be noticed. Our predecessors had occasion heretofore to look into the question whether or not a plea objecting to the judge personally can be sustained. — Lyon v. The State Bank, 1 Stew. 442. There is nothing in that case* against our conclusion in this, but rather for it. There is a North Carolina case which deserves to be noticed — Beard v. Cameron, 3 Murphey’s R. 181. In that State the Governor with the advice of the Council of the State, might fill certain vacancies, including those of the judges, by granting a temporary commission; which vacancies were to occur during the recess of the General Assembly. One of the judges died, not during the recess, but during the session of the Legislature, and Gov. Branch filled the vacancy by a temporary appointment. 'The person appointed by Gov. Branch met, in a civil suit, with ■a state of pleading which required him to decide the question of his right to hold the court. In that case Judge Henderson, of the Supreme Court, whose opinion was concurred in by the court, said — “It is, t® my mind, a very strange and incongruous proposition that an answer is required to be given by A. B. whether he be a judge, which answer he cannot give, unle'ss he be a judge. I plead that you are not a judge: A judge alone can decide the plea; and I call on you to decide. This certainly cannot be the way of testing Judge Baker’s appointment. •The way is .very simple, but it is not for the court to point it out. It is said that the extent of the jurisdiction of all courts is settled by the courts themselves. This is true; but then it •must be remembered that in all such cases there is a court com-' petent to decide, and it is called upon not to decide whether it is a court, but the extent of its jurisdiction.” In the present case, the court was called upon to decide whether at that time and place it was a court. Tills it could not decide, unless it were “ then and there” a court: which seems to prove that such a question could not be made before the judge himself, hut if made at all, must be made against him by a direct proceeding-in behalf of the State. It is an affair between him and the State.

As to the next point, we are entirely satisfied that there is nothing in the defence, that there was proof tending to show that Sturdevant had a dormant partner in the house, mentioned in die .indictment.

Let the judgment be affirmed.