Summary
dealing with the appointment of a special judge to serve during the illness of another judge
Summary of this case from Winters v. KiffmeyerOpinion
No. 36148.
June 10, 1946. Suggestion of Error Ovveruled September 23, 1946.
1. JUDGES.
A special judge, who was notified by telegraph of his appointment to serve during illness of regular judge and who thereupon, on the same day, accepted appointment and took prescribed oath, was qualified to convene the court, and to impanel and charge a grand jury which thereafter returned indictment, notwithstanding that commission which was mailed to him from Governor's office on day it was issued was not received by him until two or three days later, after indictment had been returned (Code 1942, sec. 1653; Const. 1890, secs. 127, 155).
2. OFFICERS.
An appointment to office is complete when the last act of the person or body vested with appointing power has been performed.
APPEAL from the circuit court of Marion county, HON. CLAUDE HATHORN, Special Judge.
C.E. Conner and T.B. Davis, both of Columbia, for appellant.
The only authority of Claude Hathorn to act as special judge would be a commission duly delivered to him, which commission should be shown upon the minutes of the court.
Code of 1942, Secs. 1653, 4045; 43 Am. Jur. 230, Sec. 476; 33 C.J. 939, Sec. 32.
Circumstantial evidence is always insufficient to convict a person of crime, where assuming all to be true which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other reasonable hypothesis which invests mere circumstances with the force of truth; whenever the evidence leaves it questionable which of several hypothesis is true, or merely establishes some finite possibility in favor of one hypothesis rather than another, such evidence cannot amount to proof however great the probability may be.
Allen et al. v. State, 88 Miss. 159, 40 So. 744; Perkins v. State (Miss.), 23 So. 579; Cancelliere v. State (Miss.), 23 So. 515; Sykes v. State, 92 Miss. 247, 45 So. 838; Moore v. State, 188 Miss. 546, 195 So. 695; Hogan v. State, 127 Miss. 407, 90 So. 99; Harris v. State, 71 Miss. 462, 14 So. 266; Jones v. State, 57 Miss. 684; Faulkner v. State, 170 Miss. 195, 154 So. 338; Clark v. State, 113 Miss. 201, 74 So. 127; Sorrells v. State, 130 Miss. 300, 94 So. 209; Dillard v. State, 58 Miss. 368; Foster v. State, 70 Miss. 755, 12 So. 822; 23 C.J. 149-156, Sec. 907.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The commission by the Governor, being signed by him on the 10th day of December, 1945, and placed in the United States mails on that date, constituted Honorable Claude V. Hathorn a judge de jure with full rights to proceed on being notified of said appointment although he had not received his commission at the time he organized the court and empaneled the grand jury. The law knows no fraction of a day and the commission was executed and delivered on the 10th day of December, 1945, by passing beyond the control of the Governor. The appointment was in fact made prior to the taking of the oath of office by Hathorn, according to the letter of the Governor's secretary. Hathorn, being informed thereof, accepted the appointment and filed the oath of office before proceeding to organize the court and grand jury and to charge the grand jury. The law does not require the commission to be filed with the clerk or for it to appear on the minutes at any particular time. When it is filed and placed on the minutes during the term of the court, as it was here, it is to be treated as having been filed at the proper time.
However, it is not necessary for a commission to issue if the appointment in fact was made under circumstances authorizing the appointment.
Code of 1942, Sec. 4044.
Should the court be of the opinion that the information received by Special Judge Hathorn from the Governor's secretary, that he had been appointed special judge to act in the absence of Judge Shivers, was not sufficient, Hathorn would still be a defacto judge.
Upchurch v. City of Oxford, 196 Miss. 339, 17 So.2d 204; Winn v. Eatherly, 187 Miss. 159, 192 So. 431; Bird v. State, 154 Miss. 493, 122 So. 539; Pringle v. State, 108 Miss. 802, 67 So. 455; Code of 1942, Sec. 4045.
The weight to be given to testimony is peculiarly one for the jury to determine for they have all the advantages of seeing and observing the witnesses and estimating their capacity, character and fairness, or the want of these qualifications.
See Blackwell v. State, 161 Miss. 487, 135 So. 192; Ells v. State, 159 Miss. 567, 132 So. 572; King v. King, 161 Miss. 51, 134 So. 827; Hinton v. State, 175 Miss. 308, 166 So. 762; Carter v. State, 140 Miss. 265, 105 So. 514; Ransom v. State, 149 Miss. 262, 115 So. 208.
Argued orally by C.E. Conner, for appellant, and by Geo. H. Ethridge, for appellee.
This is an appeal from a conviction of murder in which the evidence supports the verdict and no error appears in any of the rulings of the court below of which the appellant complains. One of these complaints which deserves special attention is that the court below should have sustained the appellant's motion to quash the indictment on which he was tried.
On the 10th day of December, 1945, when the term of the court below was due to begin, the regular judge of the district was ill, which fact had been certified to the Governor, who thereupon on that day appointed Honorable Claude V. Hathorn as a special judge to serve as such during the illness of the regular judge of the district in accordance with Section 1653, Code 1942, by a commission issued "in the name and by the authority of the State of Mississippi . . . sealed with the great seal of State and . . . signed by the governor, and attested by the secretary of state" as required by Section 127 of the State Constitution. The making of this appointment was telegraphed by the Governor's Secretary to the appointee, who thereupon on the same day, the 10th day of December, 1945, appeared before the Clerk of the court below, who administered to him the Judge's oath of office, and he, the appointee, thereupon convened the court, empanelled and charged a grand jury, which thereafter returned in open court the indictment on which the appellant was tried. The commission of the special judge was mailed to him from the Governor's office on the day it was issued but was not received by him until two or three days later and after this indictment had been returned. A motion by the appellant to quash the indictment on the ground that the appointment of Judge Hathorn had not become effective when he opened the court and empanelled the grand jury, was overruled; his contention there and here being that the appointment did not become effective until Judge Hathorn had received his commission and accepted the appointment. There is no merit in this, for the law is, and has been since the decision in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, that an appointment to office "is complete when the last act required of the person or body vested with the appointing power has been performed." Witherspoon v. State, 138 Miss. 310, at page 322, 103 So. 134, at page 137; 42 Am. Jur., Public Officers, Sec. 100. Here the last act of the appointing power was performed when Judge Hathorn's commission was signed by the Governor and attested by the Secretary of State. Of course, he had to accept the appointment and qualify for the duties of the office before entering upon the discharge thereof by taking the oath prescribed by Section 155 of our State Constitution. This Judge Hathorn did.
Affirmed.