Ridout v. State , 161 Tenn. 248 ( 1930 )

The law should be declared as written, otherwise judicial declaration is the will of the judge, not the law of the State. In brushing away the artifices of the law called technicality, courts should not open the way for extrajudicial determination of rights involving life, liberty and property. Courts are to declare the law as written and when the State, speaking through the courts, goes about enforcing the law, the law should be observed as written and not made for the occasion.

In this dissenting opinion the law is stated as I conceive it. The discussion involves the question of whether or not the trial court had jurisdiction to try Mrs. Ridout, sentenced to imprisonment from three to ten years for killing her husband, and Ed Grace, Freeman Turnbow Gunion and George Washington Prince, sentenced to death upon a charge of killing J.E. Levey.

In the opinion filed July 19, 1929, the court unanimously agreed that under appointment for the occasion at the September term the powers of the judge selected under section 5730 ended with that term, leaving him without colorable authority to open and hold the subsequent term. The court observed the law as written into our statutes and as declared in Low v. State,111 Tenn. 81. A majority of the court receding from the conclusion reached at the December term, 1928, now grant the State's petition to rehear and hold that the indictment reported by a grand jury organized under the direction of Mr. Wallace is valid, with the result that Mrs. Ridout is sentenced to prison, and Grace, Gunion and Prince are sentenced to death.

I am constrained to adhere to the original opinion for the reasons there stated and herein amplified. I am unable to determine from the opinion of the majority, especially when the supporting authorities are reviewed, whether judicial power is attributed to Mr. Wallace as a de facto judge, or a duly elected special judge whose powers were conferred upon his selection by the bar, for the occasion to temporarily preside at the September term, or as a special judge holding over after expiration of his term of office. However that may be, the result is to overrule Low v. State, supra, and give to the statute a construction inconsistent with that case and others to be mentioned.

We should not let the impatience of this era of modernity — it will pass away — demanding quick action, uncontrolled after the manner of an ancient despot or a Turkish Cadi of medieval times, destroy fundamentals. We must recognize courts as the repository of the State's judicial power, and that a court consists of the totality of its parts, which includes a judge, and that an indictment is an accusation by the State through a grand jury legally called by a court of competent jurisdiction, presided over by a person legally authorized to exercise judicial power in the manner and at the time and place appointed by law.

As said in Dunn v. State, 2 Ark., 229, and in Brumley v.State, 20 Ark., 77, the time and place designated by law and the presence of the judge there acting judicially are the union and combination of circumstances which constitute a court.

It was said in our case of Mengel Box Co. v. Fowlkes,135 Tenn. 206:

"The term as defined by Mr. Bouvier in his Law Dictionary (quoted by this court in Railroad v. Crider, 91 Tenn. 489, 505, 19 S.W. 618, 622), is this:

"`The presence of a sufficient number of the members of a body in the government, to which the public administration of justice is delegated, regularly convened in an authorized place, at an appointed time, engaged in the full and regular performance of its duties.'"

An indictment is necessary to give courts jurisdiction over persons accused of crime. It is uniformly held under constitutional provisions similar to Article I, section 14 of the Constitution, that a court cannot acquire jurisdiction without an indictment or presentment, and that trial, conviction and punishment without such formal and sufficient accusation are void. Howard v. State, 143 Tenn. 539; Bob v. State, 7 Humph., 129; Ex parte Bain v. State, 121 U.S. 1, 31 C.J., pp. 559-574.

Whatever may be said as to the lack of necessity for such formal accusations by a legally constituted grand jury, the requirement is embedded in our system of constitutional government. It was designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusations, whether coming from the government or prompted by the partisan passion, private enmity, or overzeal of public prosecutors and small groups who, through clamor or otherwise, possess the power of overriding the reasonable exercise of official judgment and discretion; and so the requirement of a formal indictment or presentment by a grand jury appointed by a legally constituted court is justly regarded as one of the securities of the innocent against hasty, malicious and oppressive prosecutions.

The State of Tennessee established by law in Shelby County courts with jurisdiction over crimes and misdemeanors, and enacted laws through which judges are commissioned to hold them. The statutes (Shannon's Code, 137; chapter 351, Acts of 1907) provide that for the administration of justice in the Criminal Courts of Shelby County terms shall be held by both Divisions I and II beginning on the third Monday of January, May and September each year. By chapter 445, Acts of 1909, the presiding judge of Division I is empowered to institute the grand jury for each term as an adjunct of his Division; if the judge of Division I is absent or disqualified, the power is extended by the statute to the judge of Division II.

Judge J. Ed. Richards was the duly commissioned and presiding judge of Division I and Judge Thomas W. Harsh was the duly commissioned and presiding judge in Division II on January 16, 1928. The record shows, without suggesting the source of his authority, that the Honorable Phil Wallace, Special Judge, assumed judicial power in Division I on January 16, 1928, the first day of the January term, and on that date formed the body that preferred the charge upon which plaintiffs in error were tried.

Judicial power is a sovereign power exercised through a mandate from the State and the exercise of that power by any other person than the judge must be supported by the sanction of the State. The record affords no authoritative or colorable source to support the assumption of judicial power by Mr. Wallace on January 16, 1928. Subsequent to that date, on Monday, March 12, 1928, and under the caption of the January term, Mr. Wallace was selected by the bar, under section 5730 of Shannon's Code, to preside as special judge in Division I.

Referring to another record, that of Grace et al. v. TheState, pending on petition to rehear, it may be seen that Mr. Wallace was selected by the bar under the foregoing section to preside as special judge in the absence of the regular judge on Monday, December 12, 1927. But that was done under the caption of the September term, 1927.

On February 9, 1928, under the caption of the January term, Mr. J.P.W. Hamner was elected by the bar to serve as special judge under authority of the statute mentioned. The selection of Mr. Wallace as special judge at the September term, 1927, was for the occasion, that is for the term at which the election was held, and his authority expired upon adjournment of the term. He was again chosen by the bar to act as special judge on March 12, 1928. His power as special judge, beginning March 12, 1928, could not relate back to the first day of the January term and lend colorable authority necessary to support his acts as a de facto judge.

Judicial proceedings, in courts presided over by persons duly elected but disqualified for office, or persons holding under irregular appointment, are sustained upon grounds of public policy as the acts of de facto judges under rules illustrated in many cases, among them Nashville v. Fisher, 1 Shan. Cas., 345; Bates v. Dyer, 9 Humph., 162; Venable v. Curd, 2 Head, 582; Blackburn v. State, 3 Head, 690; Wood v.State, 2 Cold., 605; Nashville v. Thompson, 12 Lea, 344;Calloway v. Sturm, 1 Heisk., 765. But the rules applied in those cases cannot extend to persons who merely assume an office. In such case they are classed as usurpers. A usurper is one who takes possession of an office without authority and his acts are void for all purposes. State ex rel. Amringe v. Taylor, 12 L.R.A., 202; State v. Hart, 7 A.L.R., 1778.

A de facto judge is one who exercises power under color of authority. None of the incidents required to constitute a defacto officer as that term is defined in Heard v. Elliott,116 Tenn. 150, attended Mr. Wallace's assumption of judicial power. Duly commissioned judges empowered by law to hold the courts and to organize a grand jury and receive indictments occupied both positions in the Criminal Court of Shelby County and left no room for the intrusion of a de facto judge.McCahan v. Leavenworth, 8 Kan. 437.

In Mechem on Public Officers, section 322, it is said: "It is evident that two different persons cannot, at the same time, be in the actual occupation and exercise of office for which one incumbent only is provided by law. There cannot be an officer dejure and another officer de facto in possession of the same office at the same time. Hence if the officer de jure is in there is no room for an officer de facto; and if the officerde facto is in the officer de jure cannot be in also."

It does not appear that the activities of a special judge were necessary. Assuming the necessity, it does not appear that Mr. Wallace was elected special judge to preside over the court assembled on the first day of the January term. In our consideration of the case it was suggested that the indictment might be valid as the act of a de facto grand jury.

No consideration of public policy would justify the conclusion that a member of the bar or other person by merely assuming the judge's position could clothe himself with the power of a judge, and by such unauthorized act could institute either a legal or ade facto grand jury. A grand jury is composed of citizens drawn from the body of the people at each term of the court and at the expiration of the term its powers cease. 31 C.J., 579. The body is dissolved and its members, without carrying any official power, return to the mass from which they came.

There was no de jure grand jury from which the body acting under appointment of Mr. Wallace could derive the colorable authority required to constitute a de facto grand jury. The principle is illustrated in State v. Stevens, 92 N.W. 420;Prescott v. Haynes, 42 N.H. 56; Hildreth v. McIntyre,42 Ky. 206.

When a grand jury is not organized by sanction of the court but is organized say by the clerk or bailiff in the absence of the judge, or if so imperfectly organized as to consist of, suppose we say one member, or any number less than that required, it is not a grand jury, and unless we should hold that the accused could be arraigned and tried upon an accusation from an unauthorized source, or upon no indictment at all, then all of the proceedings in this case must be held void.

It was also suggested that the indictment might be sustained upon the theory that it was found by a grand jury acting in a defacto court. There was a de jure court ready to function. So why supplant it with a de facto court in order to sustain an invalid indictment?

In Beaver v. Hall, 142 Tenn. 416, the judgment of a court was given force as that of a de facto court upon the principle that a court was created by statute and until that statute was declared void through an appropriate judicial proceeding, the court created by the statute could function as a court and its decrees would be binding upon those who submitted to its jurisdiction without directly challenging the validity of the creating statute.

The conclusion rests upon the presumption favoring the validity of all solemn legislative enactments and their binding effect until they are declared void. In such cases it is said that the statute, though unconstitutional, is the mandate of the sovereign speaking through the legislative department, and so long as it remains unchallenged such statute gives colorable authority to those acting in good faith under them and are binding upon those who submit without challenging their validity. That rule, however, cannot be extended to unauthorized acts of individuals who assume judicial power without colorable right. Individuals cannot establish courts de jure nor courts de facto, nor can they assume judicial authority and by the mere act of assumption create either de jure or de facto juries or other de facto officers. Prescott v. Haynes, supra; Beincourt v. Parker,27 Tex. 558.

It is a far reach from a holding that sanctions the exercise of judicial power, under an unconstitutional statute solemnly enacted by the legislative department of the State, creating in good faith a court and providing for the appointment of a judge, where rights are determined before a decree declaring the Act unconstitutional, to a rule giving validity to an unauthorized usurpation of judicial power. The latter is not entitled to judicial indulgence in a government of law.

"The law of the land" means that the State shall observe its own laws when exercising power. While courts should not create and apply niceties of practice and procedure that afford loopholes for the escape of criminals, they should see that the State, when exercising power — the power over life, liberty and property of citizens — should observe its own laws. That power can only be exercised through duly constituted courts of justice. Expediency may suggest that the courts should wink at extrajudicial methods and to breaches of the fundamental law in order to accomplish social vengeance as a means of deterring crime, and excuse the illegal act by the schoolboy promise of "this time only." But the doctrine of stare decisis is too deep-rooted. The judicial breach of duty would produce a precedent for successive precedents, and the accumulation would invite a train of evils reflecting discredit upon courts and ultimately undermining the judicial structure.

It was urged in both cases that defendants waived the defect of indictment by failure to enter a motion to quash, and by failure to point out the defect by motion in arrest of judgment.

The defect appearing in this record does not relate to any formal matter attending the organization of the grand jury but goes beyond. A grand jury is not a mere assemblage of thirteen persons in the jury room, sent there by whoever may assume the judge's stand in the absence of the judge. It is a constituent element of the court, composed of men drawn, empaneled and sworn in the manner prescribed by law under the superintendence and direction of a judge. A court without jurisdiction over criminal cases could not empanel a grand jury, and jurisdiction means power or authority legally conferred upon a judge authorized to hold a court. Jurisdiction embraces every kind of judicial action on the subject-matter from the finding of an indictment to pronouncing the sentence. 16 C.J., p. 147; 31 C.J., p. 574.

The reason for the absence of the presiding judge is not shown and the authority of Mr. Wallace to open the court and empanel a grand jury to the exclusion of both judges does not appear.

Ordinarily there is a presumption that legal proceedings are regular. Sells v. State, 156 Tenn. 610. But the presumption fails when it affirmatively appears as in this record that the acting judge was without authority (Glasgow v. State, 9 Baxt., 485), and had no jurisdiction to empanel the grand jury and take an indictment. Under such circumstances no valid judgment could follow. Bob v. State, 7 Humph., 129. The reason is that a court cannot act upon persons who are not legally brought before it. It is the imperative mandate of the Constitution that crimes shall be presented by presentment or indictment and the prisoner cannot waive the requirement. Rice v. State, 3 Heisk., 215; Ex parte Bain v. State, supra.

Where the whole proceeding of forming the panel is void, or where the jury is not a jury of the court or term in which the indictment is found, or where the jury has been selected by persons having no authority whatever to select them, or where they have not been sworn, or where some other fundamental requisite has not been complied with, objection to the sufficiency of the indictment may be taken at any time. UnitedStates v. Gale, 109 U.S. 65.

In Clare v. State, 30 Md. 163, it was held that an inquisitorial body illegally instituted had no power to act and an indictment reported by it was void. In Cook v. State, 7 Blackf. (Ind.), 165, it was held that an indictment for a capital offense in the absence of the president of the court was void because the statute required his presence. In Preston v.State, 63 Ala. 126, and Finley v. State, 61 Ala. 205, the court held that an accusation or the finding of a presentment by an illegally instituted grand jury was not an indictment, and conferred no jurisdiction on the court to put the accused on trial before a petty jury. A verdict and judgment upon such accusation was held void upon an affirmative showing of the jurisdictional defects, and it was further held that no laches of the accused could be invoked by the State to cure the illegality. See also State v. Gladden,13 Fla. 623; O'Byrnes v. State, 51 Ala. 25; Harrington v.State, 36 Ala. 236.

The Alabama statute contains a provision similar to that carried into section 7223 of Shannon's Code, which reads:

"No assignments of error or joinder in error is necessary in criminal cases taken to the Supreme Court, but the court shall render such judgment on the record as the law demands."

Referring to this statute, the Alabama Court said in Finley v. State, supra, that where the record affirmatively shows that a body was organized as a grand jury in violation of law, or without authority, all the acts of such body are void and laches of the accused would not cure the illegality, for the court should render such judgment on the record as the "law demands." The court further said that whatever would be good ground for motion in arrest in the trial court, though not mentioned there, compelled reversal in the appellate court for the error apparent on the record. In accord with this holding are Sanders v.State, 55 Ala. 183, and 2 Bishop's New Cr. Pro., 889.

This conclusion recognizes that rules of practice are for the furtherance of justice and, being but creations of the court to that end, must give way to positive law. In our cases ofThornton v. State, 3 Cold., 117, 3 Heisk., 68, and Davidson v. State, 2 Cold., 96, the court, referring to the principle underlying the foregoing authorities, said if the court see from an inspection of the record that there was no indictment or its equivalent, a void proceeding through which the indictment was found, the court will arrest the judgment, although no motion in arrest was made in the trial court. This was done in observance of the statute, section 7223 of Shannon's Code.

Where the matter relied on for the arrest of judgment arises from defective pleadings or other mere irregularity, they are waived by defense to the merits and not available on appeal.Hall v. State, 110 Tenn. 369; Payne v. State, 130 Tenn. 24.

Motions in arrest are in the nature of demurrers that go to defects of both substance and form shown by the face of the pleadings. Acting upon the presumption that every step in procedure was regular, or that mere irregularities are waived by the accused save when the contrary affirmatively appears, courts refuse to arrest judgments after verdict for errors and omissions that may be waived. But where the objection goes to subversion of all the proceedings taken in empaneling the grand jury, the doctrine of waiver does not apply. Clare v. State, supra;United States v. Gale, supra; O'Byrnes v. State, supra.

The constitutional requirement that conviction must follow an indictment cannot be waived. Rice v. State, 3 Heisk., 221.

The infirmity shown by this record does not relate to mere formal defects in the organization of the grand jury or in the proceedings of a legally instituted grand jury, but go beyond to the jurisdiction of the court.

A review of the authorities, and an application of rules designed to discover the legislative will expressed through statutes, sustains the construction given section 5730, Shannon's Code, by Low v. State.

The Constitution of 1796 made no provision for temporary or special judges. The power was limited to the regular judges, and so in Smith v. Norment, 5 Yerg., 271, chapter 37, Acts of 1827, conferring power on the Governor to appoint temporary judges, was held unconstitutional. The court applied the rule that where the Constitution prescribes the manner in which sovereignty shall be exercised, any other mode of executing the power is excluded by implication.

Article VI, section 1, of the Constitution declares that the judicial power shall be exercised by the judges of the Supreme Court and such circuit, chancery and other inferior courts as the Legislature may establish. The Constitution also requires that judges shall be elected by the voters for the definite time of eight years, and the power of judges appointed by the Governor to fill a vacancy ends with the succession of a judge to be chosen at the next biennial election. Confronted by these provisions of the Constitution, the Legislature could not supplant the judges to whom judicial power was there delegated.

To provide for emergencies, Article XI, section 6, was inserted in the Constitution of 1870. It reads: "The Legislature may, by general laws, make provision that special judges may be appointed to hold any court, the judge of which shall be unable or fail to attend or sit, or to hear any cause in which the judge may be incompetent."

Exercising the power thus delegated, the Legislature enacted section 5730 of Shannon's Code. It provides that "when for any cause the judge of a court of record other than the Supreme Court fails to attend, or if in attendance cannot properly preside in a cause or causes, the members of the bar may appoint one of their number to hold the court for the occasion." It is to be doubted if the Legislature could have enacted a law authorizing the members of the bar to appoint a special judge for an indefinite term, and in sustaining the Act against a charge that it was unconstitutional the court said as much in Hundhausen v.Insurance Co., 5 Heisk., 707, and Ligan v. State, 3 Heisk., 162.

In the Hundhausen case the court construing the Act so as to free it from the attack upon its validity said: "It is true the word appointment is used but we think this only means the selection or designation of some one to hold the court or hear any case in which the judge is incompetent," and "the provision is not to enable the Legislature to provide for filling a vacancy in an office, but only to supply a temporary absence of the judge of the court. . . . The Constitution goes on the assumption that the office of judge is filled, but the officer is absent, and to meet such cases the Legislature is left to its discretion to provide for them."

In the Ligan case it is said: "It will be seen that in case of judges of the Supreme Court, the Constitution itself provides for the Governor commissioning men to try and determine the cases in which they are incompetent. But in case of a judge of an inferior court the Legislature is left to make provision that special judges may be appointed to hold any court. It is not a provision for filling a vacancy, and goes upon the assumption that the office itself is filled by the regular incumbent who fails to attend or sit, or is incompetent to try cases on the docket." The court further said:

"The Constitution did not intend to authorize the filling of the office, but only to allow the Legislature to provide for the temporary appointment of some one to hold any court when the judge failed to attend and sit or was incompetent."

In Halliburton v. Brooks, 7 Baxt., 318, the court held that the substitution was a temporary expedient designed for the convenience of suitors and the bar. That the substitute selected under section 5730, Shannon's Code, was temporary and that his powers ended with the term for which he was selected was recognized by the Legislature in the subsequent enactment of Shannon's Code, section 5724, providing for the appointment of special judges by the Governor, and expressly conferring upon them the power of the regular judge, with authority to continue holding the court or courts until the regular judge resumed his duties.

With this background the court said in Low v. State, 111 Tennessee, that the Legislature did not intend to authorize attorneys of the court to elect one of their number to hold the office of special judge for a longer time than the particular time at which he was elected. This is followed in Harness v.State, 126 Tenn. 365, by the statement: There is a vast difference between acts of a special judge who undertakes to hold court after the occasion for which he was elected has passed, where he is without a shadow of authority, and the acts of a special judge duly elected and qualified in every respect, except as to his failure to take a now relatively unimportant part of the oath prescribed for public officials.

A comparison of the Kentucky statutes and ours providing for the selection of a judge for the occasion shows a similarity that calls for reference to cases in the State holding that the selection of a special judge for the occasion means for the term, and after expiration of the term his powers cease and judgments of a court over which he may thereafter preside are void.Childers v. Little, 96 Ky. 376; Small v. Brooks,109 Ky. 652; Kentucky Union Co. v. Bailey, 174 Ky. 488.

From the foregoing authorities it is apparent that the powers of an attorney selected by the bar for the occasion are by law limited to the term, and that he cannot project the transient judicial power given for the occasion into another term nor exercise it on any other occasion or at any other place. His unauthorized act at another place or for another occasion cannot be recognized as the act of either a de jure or a de facto judge. Mere assumption of power cannot give color to an unauthorized judicial act upon grounds of public policy from which the de facto theory arises. Mere claim to be a judge does not constitute one a de facto judge. There must be some claim of right to the office, or else performance of its duties so long acquiesced in by the public as to raise a presumption of colorable right. Hamlin v. Kassafar, 15 Oreg., 456; Wilcox v. Smith, 21 Am. Dec., 213; Hildreth v. McIntyre, 19 Am. Dec., 63.

Nothing in the record shows that Mr. Wallace was elected by the bar under section 5730 or appointed by the Governor under section 5733 of Shannon's Code when he opened the court and organized the grand jury on the third Monday of January. Assuming that he was elected by the bar December 12th during the September term, as shown in the record in the Gunion case, it cannot be held without overruling Low v. State, that his judicial power extended to the January term.

For the reasons stated, I am of the opinion that the indictments upon which these defendants were tried are void, and that their judgments of condemnation should have been reversed. In this conclusion MR. CHIEF JUSTICE GREEN concurs.