Summary
In Williams v. State, 179 Miss. 419, 174 So. 581, the Court said: "A transcript of the entire of the so-called minutes of the term was brought before us in this record, and therefrom as certified to us by the clerk, the circuit judge failed to sign any of the minutes until Monday morning, September 14, 1936.
Summary of this case from Willette v. StateOpinion
No. 32507.
June 7, 1937. Suggestion of Error Overruled September 20, 1937.
1. CRIMINAL LAW.
Where circuit judge failed to sign any of minutes until after expiration of term, record did not legally show that any term of circuit court had been held requiring reversal of conviction which was had during such term (Code 1930, sections 473, 750).
2. CRIMINAL LAW.
Where circuit judge failed to sign any of minutes until after expiration of term, and therefore record did not legally show that any term of court had been held, defect could be raised for first time on appeal (Code 1930, sections 473, 750).
3. CRIMINAL LAW.
The duty of trial judge to sign minutes within term time is function which appertains to general administration of his office, and is not one which litigant is required to stand by and watch as to whether duty has been performed (Code 1930, section 750).
APPEAL from the circuit court of Quitman county. HON. WM. A. ALCORN, Judge.
T.N. Gore and Boone Thompson, all of Marks, for appellants.
We assign as error in this case the fact that there was no legal constituted court in Quitman County, at the August Term, 1936, when the appellant was tried and convicted in this case, and the court did not sign the minutes thereof during term time, that there are no minutes during term time evidencing the conviction of appellant of the Circuit Court of Quitman County, and it will be noted that for a proper consideration of this question the record in this case contains a complete copy of the minutes of the said court at said term.
Attention of the court is first called to the legally designated terms of Circuit Court for Quitman County, being under Section 493 of the Mississippi Code of 1930, and at page 390, thereof, Quitman County being in the Eleventh Circuit Court District, and provides for courts as follows: "Quitman: On the First Monday of February, twelve days, on the first Monday in June, eighteen days, and on the fourth Monday of August, eighteen days, but at the June term no grand jury shall be drawn or empaneled and no criminal case tried." The term at which appellant was tried and convicted, as shown by the record, was the August term, 1936, to convene pursuant to the statute on the fourth Monday of August, 1936, for eighteen days, and the court will note that the fourth Monday of August, 1936, was August 24, 1936, on which day the Circuit Court should have convened. Please note the attempted order of the Circuit Court, as shown by the record, and which was signed on August 15, 1936, at which time there was no special term of court, or other term of court in Quitman County, Mississippi, and was nine days before the August term of the Circuit Court was to convene pursuant to the statute, as above cited.
It is our contention, of course, that this order was void; that a circuit judge has no authority to act in vacation, and it will be noted that this order, as entered, adjourns court from the fourth Monday of August, 1936, to the first Monday of September, 1936.
It is to be noted that August, 1936, has five Mondays, and this order attempted to adjourn the Circuit Court for two weeks, and pursuant to that order, the Circuit Court convened on the 7th day of September, being the third and last week of the legally designated term, and the court then empaneled petit and grand jurors and attempted to, and did, transact business of the court during that last week, and it will be noted that throughout the record of the term of court that at the end of each day of the term, the clerk drew up the minutes and fixed a line under the minutes of that day for the judge to sign, but no signature of the circuit judge appears on the minutes of the court during the entire week, or during the legally designated term, and the record shows the minutes of September 10, 1936, and the conviction of appellant. Minutes were not signed by the Circuit Judge until the 14th day of September, 1936.
It is true that when this order of adjournment was issued, it is stated that the court opened on the 14th day of September, pursuant to adjournment, but the court's attention is called, first, that the legal term had expired, second, that no minutes during term time had been signed by the Circuit Judge, and third, that no case was pending in court to carry the court beyond its legal term, that no order had been entered during the regular term to extend the term, and no special term had been called, and it being our contention that the Honorable Circuit Judge was without authority on the 14th day of September, 1936, to appear and adjourn a term of court and sign minutes and act in vacation unauthorized by the statute, and directly controverts the decisions of this court, and it is our further belief and opinion that the Honorable Circuit Judge overlooked the fact that there were five Mondays in August and probably thought that he was in the third week of the court, when, in fact, the three weeks term had expired, and his acts were in the fourth week, in vacation.
We contend that the minutes of the Circuit Court speak for themselves, that they are the legal record of the actions of the court, that the minutes should be given full faith and credit, and to validate the minutes, it was necessary that they be signed in term time.
Section 750, Code of 1930; Jones v. Williams, 62 Miss. 183; Hammond-Gregg Co. v. State, 146 So. 122.
It is not possible for a circuit judge to hold a term of court and open and close the same at his own will.
Williams v. Simon, 99 So. 433.
It cannot be contended that the term of court was extended, because such extension would have had to have been entered on the minutes during term time, and signed by the judge, and no signature of the judge appears at all on the minutes during term time at the August term, 1936.
Perry v. State, 122 So. 744.
The court had no jurisdiction to act or try the appellant at the time he was attempted to be tried.
Arbour v. Y. M.V.R.R. Co., 54 So. 158.
Our contention is that the minutes of the Circuit Court of Quitman County are conclusive, and there are no minutes of a court held in Quitman County at the time it is purported that the appellant was tried and convicted, and further, that the law requires the minutes of the Circuit Court to be complete, rights, life, liberty and property depend and rest upon them.
Steverson v. McLeod Lbr. Co., 81 So. 789.
Our further contention is that minutes of the court speak for themselves and are the only evidence of a court and must be signed at the time provided by the statute and in the manner there provided, and that this is mandatory and the defendant has had no legal and constitutional trial and nothing can validate his illegal trial and conviction, not even the Honorable Judge in his attempt to sign the minutes after the term had expired, and these minutes shown in Quitman County for the August term, 1936, were a nullity.
Section 733, Code of 1930.
Wm. H. Maynard, Assistant Attorney-General, for the state.
There was a legally constituted court for the August term, 1936, of the Circuit Court of Quitman County.
Appellant argues that this order was signed in vacation and thus is void and did not have the effect of adjourning the August term to a later day than that set by statute. This contention is without basis, for the reason that Section 733 of the 1930 Code of Mississippi expressly provides that: "By virtue of a written order by the Judge or Chancellor, it (the court) may be adjourned by the clerk or sheriff to any day of the term, as the order may direct, and parties, witnesses and jurors must attend accordingly."
Banks v. Bloch, 82 Miss. 197; Miss. R.R. Co. v. Brown, 160 Miss. 123, 132 So. 556.
The failure of the Circuit Judge to sign the minutes of the court until September 14, 1936, did not void the proceedings of said court, which had occurred prior to the signing of said minutes.
Watson v. State, 146 So. 122.
We grant that it is imperative that it be held that verdicts and judgments be rendered in term time in order to be valid. However, in our case it is not denied that the verdict and judgment against appellant were rendered in term time. Also, it is not denied that the minutes were properly drawn up by the Circuit Clerk during said term and correctly disclosed the verdicts and judgments of said term. The only step not followed in compliance with Section 750 of the 1930 Code was that the Circuit Judge did not sign said minutes until after the expiration of the term. The only purpose of requiring the signature of the judge is to make a verified record of the proceedings of the court. It is to the interest of justice that these minutes be signed before the term has expired, but, if for some reason, they are not signed until after the expiration of the term, they are nevertheless verified by the judge at the time of the signing and the verdicts and judgments rendered during the term time should not be held void because of this dilatory signing. Of course, until the judge has signed said minutes, after the expiration of the term, the verdicts and judgments are not authenticated, but after said signature, they should be held to be of full force and effect.
Ex parte Golding, 148 Miss. 233, 114 So. 385; Watson v. State, 146 So. 122.
In the case of Fernwood Mining Co. v. Pluma, 136 Ark. 107, 205 S.W. 822, it was expressly held that the failure of a judge to sign the minutes of the court prior to the expiration of the term prescribed by law would not invalidate the judgment and orders of the court rendered during said term, in spite of the Arkansas statute, which required that a judge should sign the minutes and records at the time of final adjournment.
In spite of the language used by this Honorable Court in the Watson case, wherein it was stated that a circuit judge had no authority to sign the minutes of his court in vacation, we ask this Honorable Court to hold that said rule had application only to the facts in the Watson case, and would not prevent the circuit judge from signing said minutes in vacation where the signing was merely a verification of proceedings which had been conducted and concluded in term time. However, if this Honorable Court should hold that the signing of said minutes in vacation amounts to no signing at all, then we submit that this should not be held to invalidate a case which was tried during a legal term. As pointed out, the only purpose of the signing of minutes is to import absolute verity to the records and it is consistent with reason to hold that where there has been a legal trial and conviction as evidenced by the minutes drawn up by the circuit clerk, that a failure of the judge to sign said minutes should not invalidate said conviction. Without minutes legally signed, it would be a question of fact as to whether there had been a legal conviction, and this question could be raised by proper proceedings in the lower court.
Argued orally by T.N. Gore, for appellant, and by Wm. H. Maynard, for the State.
It is said that appellant was convicted at the August, 1936, term of the circuit court of Quitman county, but there is no authentic record before us of that fact or, indeed, that any such term of court was ever held at all.
The facts are that, by law, a term of the circuit court of that county is fixed to begin on the fourth Monday in August for eighteen days. Section 473, Code 1930. On the 15th day of August, 1936, the circuit judge addressed an order to the circuit clerk and sheriff of the county directing them to adjourn the August term of that year until the first Monday in September. On that day, to-wit, on the first Monday, the 7th of September, 1936, it is said that the court convened and proceeded with business, and it is said that on Thursday, September 10, 1936, the appellant was adjudged guilty of the crime of manslaughter and that a judgment was on said day rendered sentencing him to a term of five years in the state penitentiary. It is said that on Friday, September 11, 1936, after transacting considerable business, the court adjourned until Monday morning, September 14, 1936, and on Monday morning, September 14, 1936, the court is said to have convened and that the judge signed the minutes adjourning the court until court in course.
A transcript of the entire of the so-called minutes of the term was brought before us in this record, and therefrom as certified to us by the clerk, the circuit judge failed to sign any of the minutes until Monday morning, September 14, 1936. The so-called minutes for all previous days plainly and definitely show that the judge wholly failed to sign them. The term expired by operation of law at midnight September 12, 1936, from which it follows that when the judge for the first time undertook to sign the minutes on Monday, September 14, 1936, the court was then in vacation.
In Watson v. State, 166 Miss. 194, 210, 211, 146 So. 122, 126, it said: "A writing or entry on a book provided for recording the minutes of the proceedings of the courts of this State does not become a part of the court's minutes until such tentative minutes are read and signed by the presiding judge." The court futher held that the provisions of section 750, Code 1930, requiring the minutes to be drawn up and thereupon corrected and signed by the judge before the adjournment of court is mandatory, and the court continued: "In view of the mandatory provision of this statute, there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation."
It is argued that appellant cannot raise this point for the first time on appeal; that he should have objected or raised the point in the trial court. The first difficulty with that argument is that it is not legally shown that any term of the trial court was held at all; and in the second place, the duty of the trial judge to sign the minutes within term time is a function which appertains to the general administration of his office, and is not one which a litigant is required to stand by and watch as to whether the duty has or has not been performed.
Reversed and remanded.