State v. Boykin, 75 So. 378

State v. Boykin

75 So. 378 | Miss. | 1917

Holden, J.,

delivered the opinion of the court.

This is an appeal by the state from a judgment of the circuit court of Smith county sustaining a demurrer to an indictment upon the grounds:

“First, that the said instrument purporting to be an indictment was not filed by the clerk of the circuit court of Smith county, Miss., nor any deputy authorized to act as such; second, because said purported indictment was marked ‘filed’ and the name of J. M. Bryant, circuit clerk, indorsed thereon by some other person than the said J. M. Bryant or his sworn deputy, and is therefore illegal and void.”

The appellee, Roseoe Boykin, pleaded “not guilty” to the indictment at a former term of court, and a trial was had upon this issue joined, and, the jury being unable to agree upon a verdict, a mistrial was entered. At the next term of court, Boykin, through his attorneys, moved the court to quash the indictment for the reasons given above, which motion was sustained by the lower court.

We deem it unnecessary to pass upon the question as- to whether or not the defendant in the lower court could properly interpose a motion to quash the alleged defective indictment, after he had pleaded “not guilty,” joined issue with the state, and proceeded to trial at the prior term of court; but, assuming that the appellee still had the right to file the motion to quash after pleading to the indictment and having had one trial, with the result of a mistrial, we think that the lower court erred in sustaining the motion to quash the indictment.

The testimony taken on the hearing m the lower court discloses that the indictment when returned into court by the grand jury was marked “filed” and the name of J. M. Bryant, the circuit clerk, was indorsed thereon by a Miss Hester Stringer, a young lady who was working in the clerk’s office as his assistant and *533performing the duties of the office of deputy clerk. She had not taken the oath as. deputy clerk as required by statute, but she had been for some time performing the duties of the office, by the authority and under the direction of the circuit clerk, and was so acting at the time she signed the clerk’s name to the indictment here in question. The fact that she signed the clerk’s name to the indictment without affixing her name as deputy did not invalidate the indictment, if it was otherwise properly filed and indorsed.

Section 1006 of the Code of 1906 provides, in substance, that-.deputy clerks shall have power to do and perform all the acts and duties which their principals may lawfully do. Miss Stringer having acted for some time in the capacity of deputy clerk, under the authority and direction of the clerk, and having acted as the clerk’s deputy for a sufficient length of time to be generally recognized by the public as such, she was a de facto deputy clerk, and her acts were as valid as those of the clerk. This is true even though she may have been ineligible to appointment as deputy because of minority or other reasons, as a de facto officer is one who is such in fact, but not in law, and whose acts are as effective as the acts of a de jure officer. Wimberly v. Boland, 72 Miss. 241, 16 So. 905.

The judgment of the lower court in sustaining the motion to quash the indictment is reversed, and the case remanded.

Reversed and remanded^.