In Grant v. State, 189 Miss. 341, 197 So. 826, it was said: "Thus, while it will be seen that the entry of the minutes each day by the clerk against the next sitting of the court is contemplated, and is to be commended as good practice, it is not made mandatory that they shall be signed until the last day of court. It is mandatory that the same shall be signed before the adjournment of the court."Summary of this case from Willette v. State
September 30, 1940.
While entry of minutes each day by clerk of circuit court against the next sitting of court is contemplated, and is to be commended as good practice, it is not mandatory that minutes be signed until last day of term, but it is mandatory that minutes be signed before adjournment of court (Code 1930, sec. 750).
Where a circuit judge would have had power to sign minutes of term on last day thereof, or at any time before adjournment of term, judge's successor in office was vested with same power and authority, where successor was appointed by Governor and qualified before adjournment of term commenced by predecessor (Code 1930, secs. 733, 734, 750).
3. INDICTMENT AND INFORMATION.
Where during first week of regular term of circuit court, which convened on first Monday in November, 1939, defendant was indicted and arraigned on charge of murder, and, on second Monday of term, circuit judge died without having signed any minutes of court for preceding week, and on following Tuesday and Wednesday mornings clerk entered orders upon minutes adjourning court from day to day, and succeeding judge appointed by Governor thereafter approved and signed minutes of term as kept by clerk, denial of defendant's motion to quash indictment on ground that state did not have a valid indictment on which defendant would be tried, because succeeding judge was without authority to sign minutes of court's business which transpired prior to day on which he assumed duties of office, was proper (Code 1930, secs. 733, 734, 750).
APPEAL from circuit court of Forrest county; HON. ALEXANDER CURRIE, Judge.
Earle L. Wingo, of Hattiesburg, for appellant.
The only question presented by this appellant is the error of the trial judge in refusing to quash the indictment against the appellant.
It will be observed from a reading of the motion to quash the indictment that four days after the indictment was rendered and that is to say on the 13th of November, 1939, Judge W.J. Pack, the regular circuit judge, died and thereafter the Honorable Alexander Currie on the 15th of November, 1939, was appointed by the Governor of the state as special judge. Also, that the appellant took the position that since the circuit judge, the Honorable W.J. Pack, did not sign the minutes of the court prior to his untimely death the special judge could not sign the minutes which involved matters acted upon during the life of the regular judge; that because of these facts the indictment was wholly void and should have been quashed.
Since the appellant was indicted on the 9th day of November, 1939, the regular trial judge died on November 13, 1939, none of the minutes of the court were signed by the trial judge prior to his death and since the court speaks through its minutes the term of the court died with the death of the judge. The arbitrary and summary signing of the minutes by the special judge would never have the effect of breathing life into that which is dead. It is for this reason that the acts of the special judge in undertaking to breathe life into the minutes of the court concerning matters which were presented and in existence prior to the death of the regular judge prior to the appointment of the special judge was an absolute nullity and had no greater effect than if no attempt had been made to sign the minutes by the special judge.
Our court has never passed upon this question and we earnestly submit that in the absence of statutory authority expressly empowering the special judge to sign the minutes after the death of the regular judge, the acts of the special judge in this particular instance are to no avail and are wholly void.
It is for this reason that we submit the motion to quash the indictment should have been sustained and for error in failing so to do cause should be reversed and remanded for new trial.
W.D. Conn, Jr., Assistant Attorney General, for appellee.
Under the provisions of Section 6283, Mississippi Code of 1930, as necessarily modified by Section 17 of Chapter 19, of the Laws of 1935, Extraordinary Session, and Section 103 of the Mississippi Constitution, it is clear that the Governor has the right to appoint a circuit judge to fill a vacancy caused by the death of the regularly elected circuit judge. There appears to be no statute providing for what shall be done from the time of the death of the regular circuit judge while he is holding court until a new judge has been appointed and has qualified; nor is there any statute which expressly authorizes an appointed judge to sign the minutes which were made while the regular judge was acting as such.
We think it is clear that the death of the circuit judge during a term of court would not ipso facto lapse the term. The law provides that when a regular term of court has been begun it will not be terminated in the absence of an adjourning order until the time fixed by statute has expired.
Under Section 750 of Mississippi Code of 1930 it appears that it is not an absolute requirement that the minutes of the court shall be signed from day to day, the only absolute requirement in this respect being that they shall be signed before the adjournment of the court. Had Judge Pack continued on, he could have signed the minutes on the last day of the term and they would have been the legal minutes of the court. The question then is may the newly appointed judge do that which the regular judge could have done.
As pointed out, the office of the circuit judge does not lapse with the death of the judge. The office of judge remains irrespective of the particular incumbent thereof. In the case at bar the hearing on the motion shows that the new trial judge examined into the correctness of the entries on the minutes and signed them and they thereby became the minutes of the court. Appellant has not been denied any right by this act of the judge because there was no disputed question of fact in his case pending before the circuit judge who died.
We submit that when the court convened, as provided by law, it continued in session until it was finally adjourned by Judge Currie and that that judge of the court committed no error in overruling this motion to quash and in putting defendant to trial.
During the first week of the regular term of the Circuit Court of Forrest county, which convened on the first Monday in November, 1939, the appellant was indicted and duly arraigned on a charge of murder. On the second Monday of the term, after the court had reconvened for the day's session, the Circuit Judge, Honorable W.J. Pack, died without having signed any of the minutes of the court for the preceding week. Nor was there any signed order on the minutes, adjourning the court from the preceding Saturday until Monday morning of the second week. Upon the death of Judge Pack the court term, of course, stood at recess, since there had been no sine die adjournment thereof; and the duration of the term, as fixed by law, had not expired.
On the following morning, Tuesday, November 14th, the clerk entered upon the minutes of the court the following order: "The presiding judge having failed to attend on this date, court stood adjourned until tomorrow, November 15, 1939. (Signed) L.M. Cox, Circuit Clerk."
On the following day, Wednesday, November 15th, a similar order was entered and signed by the clerk, adjourning court until November 16th.
Thereupon, the Honorable Alexander Currie appeared in open court with the commission issued to him by Hugh White, Governor of Mississippi, whereby he had been appointed to the office of Judge of the Circuit Court of the District, with all the powers, privileges, etc., appertaining to the said office. This commission was duly enrolled on the minutes of the court, and Judge Currie thereupon assumed the duties of his office, and the session of the court continued; whereupon the attorney for the appellant filed a motion to quash the indictment which the grand jury returned against him the preceding week of the court term, on the ground that the newly appointed Circuit Judge was without authority to sign any minutes of the court's business which had transpired prior to the day on which he assumed the duties of the office; and that, therefore, the state had no valid indictment on which the appellant could be tried. This motion was heard by Judge Currie on the next day, Friday, November 17th, when the facts with reference to the opening and organization of the court on the first Monday of November, the empaneling, swearing and charging of the grand jury, the return of the indictment, the arraignment of the defendant, and the failure of Judge Pack to sign any of the minutes of the term prior to his death, the appointment and qualification of his successor, were disclosed by the evidence introduced on the motion.
Thereupon Judge Currie entered a finding of fact as to what had previously occurred, and held that all of the minutes of the term prior to the day on which he assumed the duties of the office, as kept and recorded by the clerk, were true and correct; and he then approved and signed them. Thereafter the appellant was tried, convicted of the crime of murder, and sentenced to serve a life term in the state penitentiary.
On this appeal the only ground assigned for reversal of the case is the action of the trial court in overruling the motion to quash the indictment.
Section 733, Code of 1930, defines what may be done if a Circuit Judge or Chancellor fails to attend at any term of the court, having particular reference to failure of the judge to appear and convene the term at the time appointed by law. But section 734 of the Code provides, among other things, that "if the court shall not sit on any day of the term after it shall have commenced, there shall not be any discontinuance, but the court may proceed to business on any subsequent day until the end of the term; and any court may take a recess to any day within the time during which it may be held." This latter section is an exact rescript of section 914 of the Annotated Code of 1892, which was construed by the Court in the case of Palmer v. State, 73 Miss. 780, 20 So. 156, 157, wherein Palmer had been indicted at the January, 1896, term of the Circuit Court for murder. At the time the indictment was returned and the arrest made, Judge J.B. Chrisman was presiding judge of the court. His term of office expired on January 21, 1896, during the term of court. No judge appearing in the court the next day, the court was adjourned by the sheriff until the next succeeding day, January 23rd. The arraignment, trial, conviction and sentence of Palmer occurred before Judge Robert Powell, successor in office of Judge Chrisman, and whose term of office began on January 23rd of that year. It is true that in the Palmer case it was shown that Judge Chrisman signed the minutes of the business prior to the expiration of his term of office; but we call attention to that case on the point as to whether or not the expiration of the tenure of office of the presiding judge during a term of court, by limitation or by death, would have the effect of working a discontinuance of the term. In that case the Court said: "The court is one thing; the judge, another thing; and the term, a third thing. The court may convene and adjourn from day to day, in the absence of a judge, though no judicial proceedings may be had without a presiding officer — a judge. The court does not perish because the judge may not be present each and every day. Our statutes abound in provisions intended to provide against such discontinuance of the court. So, also, our statutes provide against any discontinuance of a term (the fixed time in which a court must be held) because of the temporary absence of the presiding officer of the court." Then after discussing section 914, Ann. Code of 1892, the Court further said: "Plainly, this statute prevents a discontinuance of a term of court, after the term has been commenced, because of a failure to sit of the court, from any cause, for any day of the term thus once begun. The illness of the judge for a day; the death or resignation of the judge, and a vacancy in that office for a day, or the expiration of the term of office of the judge who began to preside over the court, and the intervention of a day before his successor qualifies and appears in court, shall not work a discontinuance of the term."
Moreover, section 750, Code of 1930, provides as follows: "The minutes of the proceedings of the Supreme, circuit, chancery and county courts shall be entered by the clerk of each, respectively, in the minute-book of the court, against the next sitting of the court, if practicable, when the same shall be read in open court; and when corrected shall be signed — the minutes of the Supreme Court by the chief justice or presiding judge, of the circuit court by the circuit judge, of the chancery court by the chancellor and of the county court by the county judge; and on the last day of the term the minutes shall be drawn up, read, and signed on the same day, or before the adjournment of the court."
Thus, while it will be seen that the entry of the minutes each day by the clerk against the next sitting of the court is contemplated, and is to be commended as good practice, it is not made mandatory that they shall be signed until the last day of the term. It is mandatory that the same shall be signed before the adjournment of the court. If it be true that Judge Pack would have had the right to sign all of the minutes of the term on the last day thereof, or at any time before the adjournment of the term, we think that it necessarily follows that his successor in office was vested with the same power and authority where he is appointed and qualifies before the adjournment of the term commenced by his predecessor. Upon his qualification under the commission which he held, Judge Currie became the regular presiding judge of the district, and his power was not limited to that of a special judge, acting in lieu of a regular presiding judge who is still in office.
We are therefore of the opinion that the action of the trial court in overruling the motion to quash the indictment was correct.