Cary v. State

76 Ala. 78

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMENYILLE, J.

— The judgment must be reversed, on the authority of Storey v. The State, 71 Ala. 330, and other cases there cited, for a defect in the administration of the oath to the jury. The recital is, that the jury “ were sworn well and truly to try the issues joined,” thus omitting the phrase, “ and a true verdict render according to the evidence, so help you God,” which is expressly made an essential ingredient of such oath by statutory requirement. — Code, 1876, § 4765; Johnson v. The State, 74 Ala. 537.

There are two classes of notaries public in this State, each of which is appointed by the Governor. The duties of the first class include the administration of oaths, taking acknowledgments of certain instruments of writing, the protesting of bills of exchange, and other like powers, such as are expressly prescribed by statute, or aufhorized by general commercial usage. — Code, §§ 1325, 1329-1331. These are notaries public in the common acceptation. The second class, in addition to these powers, possess also the jurisdiction of justices of the peace, civil and criminal, and are therefore judicial officers. The Governor is authorized by the constitution to appoint one notary of this class for each election precinct in the several counties of the State, and one for each ward in cities of over five thousand inhabitants, who are ex officio justices of the peace within their respective wards or precincts. While the statute expressly declares that the first class shall “hold office for three years from the date of their commissions, and until their successors are qualified,” it is equally clear in the declaration that the second class shall “ hold their office three years from the date of their commissions,” thus, by obvious implication, excluding a construction which would permit them to hold for a single day after the expiration of their commissions. Code, § 1325; Const. 1875, Art. IY, § 26.

Courts are authorized and required to take judicial notice of the various commissioned officers of the State, and to know the extent of their authority, their official signatures, and their respective terms of office — when such terms commence, and when they expire. — Graves v. Anderson, Green & Co., at present term; Coleman v. The State, 63 Ala. 93; 1 Greenl. Ev. (14th Ed.) § 6. “ This cognizance,” as observed in Gordon v. Tweedy, 74 Ala. 237-8, “ may often extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence.” The dates of these commissions are matters of public record in the executive department of the State government, being accessible to inquiry by all who may be concerned, and the law fixes the duration of each official term.

Under these principles of law, the Circuit Court was required to take judicial cogizance of the fact that French Nabors, who issued the warrant sought to be excluded from evidence, was commissioned by the Governor of Alabama as a notary public and ex officio justice of the peace, on the fifth day of May, 1879, and that his term of office expired on the fifth day of May, 1882, three years from the date of his commission, and several months before the issue of the warrant, which is shown to have been issued the twenty-ninth day of July, 1882. Nabors was not, therefore, an officer de jure when he assumed to do this official act; and unless he was an officer de facto, the paper must be held to have no legal validity as a warrant, and, consequently, to confer no authority upon Reynolds to make an arrest under it. — Noles v. The State, 24 Ala. 672. In this asspect of the case, excluding from consideration all inquiry as to its de facto character, — a point which we propose next to consider, — the paper should have been excluded from evidence as a legal and valid warrant, although admissible as a part of the res gestee, if shown to have, been exhibited and read to the defendant, at or about the time of the difficulty between the parties, which resulted in the alleged shooting of Reynolds.

Was Nabors, however, a defacto officer at the time he isued the paper in question, — an act which was done within something less than three months after the expiration of his official term. The general statement is made, that he was an acting notary public at this time; but there is no proof of any other official act being peformed by him within this period of time. It may be proper to consider the rules of law governing this feature of the case, in view of the fact that the cause must necessarily be remanded for a new trial, and additional evidence may be offered on this point.

The rule is well settled, that the official acts of an officer de facto are just as valid, for all purposes, as those of an officer de ju/re, so far as the public and third persons are concerned. Joseph v. Cawthorn, 74 Ala. 411, and cases cited. As observed by Sutherland, J., in Wilcox v. Smith, 5 Wend. 231, “ the affairs of society could not be carried on upon any other principle.”

It is sometimes very difficult to determine whether one claiming to exercise the duties of an office, is an officer de faeto, or a mere usurper. The distinction is sometimes said to be, that the former claims to hold under color of election or appointment, while the latter claims no authority or color of authority for his intrusion into possession of the office whose functions he undertakes to usurp. — People v. Staton (73 N. C. 546), 21 Amer. Rep. 479. The better and more modern view, however, is, that no color of election or appointment is needed to constitute one an officer de facto. While it is sufficient for such purpose, it is not a necessary pre-requisite. The true principle is, that there must be either some color of election or appointment, or else “ an exercise of the office, and an acquiescence on the part of the public, for a length of time which would afford a strong presumption of at least a colorable election or appointment.”— Wilcox v. Smith (5 Wend. 231), 21 Amer. Dec. 213; State v. Carroll (38 Conn. 449), 9. Amer. Rep. 409, 425. Or, as we find the rule stated elsewhere, “ the mere exercise of the functions of an office will not be sufficient to make a person a de facto officer, where there is no claim to the office under color of an election or an appointment, unless the exercise thereof has been open, notorious, and continued for such a length of time, without the public having interfered, as to justify the presumption that the party was duly appointed.” Hildreth v. McIntire, 19 Amer. Dec. 61, and Note on p. 68. In Rex v. Bedford Level, 6 East, 356, Lord Ellenborough defined an officer de faeto as “ one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law,” thus adopting the definition of Lord Iiolt in Parker v. Kett, 12 Mod. 467, which was decided as far back as the year 1693. The definition is one now fully recognized in England, and has been generally adopted by the American courts in its broadest and most liberal sense.— Wilcox v. Smith, 21 Amer. Dec. 213 ; Hildreth v. McIntire, 19 Amer. Dec. p. 63, Note ; State v. Carroll, 9 Amer. Rep. 409.

To constitute Nabors a de facto notary, within the above principles, he must either have acted under color of appointment and claim of official right, or he must have continued to exercise the duties of his office, by public acquiescence, for such length of time and by such frequency of repetition as to afford reasonable presumption of his holding over under a re-appointment. The first commission having expired, without any right in law to hold over, it could not, in our judgment, lend color for any length of time beyond its expiration.

As observed by Butler, C. J., in State v. Carroll, 38 Conn. 449 (s. o., Amer. Rep. 426, supra), it seems “ absurd to say that color from election or appointment can extend beyond the distinct and independent term for which the officer was elected or appointed — -beyond the term when the election or appointment could be made operative, if legal.” Yet, although an expired commission is not color of title to office, still, if an elected or appointed public officer continues, without break, and without question by the public, to exercise the functions of the office after the expiration of his commission, this is a continued exercise of the duties of the office by acquiescence, and, under the modern rule, constitutes the person thus acting an officer de facto. In Brown v. Bunt, 37 Me. 423, a justice of the peace, who held over without legal right or re-appointment, continued to act, and took an acknowledgment of a deed about two years after the expiration of his term of office. In Gilliam v. Reddick, 4 Ired. (N. C.) 368, where an officer elected to hold for four years, without any right to hold over, continued to exercise the duties of the office for about nine years, without re-appointment or re-election, an official act performed by him was sustained upon the ground that he was an officer de facto, acting openly and notoriously in the exercise of the office for a considerable length of time, and his act in the particular case, which was recording a deed, concerned the rights of third persons or the public, and was therefore deemed to be as valid as the similar act of a rightful officer.

It is manifest, moreover, that an appointment may often be presumed upon evidence which would fail to justify presumption of a popular election, because it is an investiture of office less public in its nature, and the whole doctrine imparting validity to the unauthorized acts of defacto officers is one based on justice, necessity and public policy, and is intended chiefly for the protection of an innocent public who may be ignorant of the officer’s defect of official title. — Joseph v. Cawthorn, 74 Ala. 411.

These general rules will probably be sufficiently specific for the guidance of the court below upon another trial, and we need not, therefore, be more definite.

It is a familiar rule of our criminal law, that no man who is attacked in his own dwelling-house, is compelled to retreat, in order to invoke the benefit of the doctrine of self-defense. In Jones v. The State (ante, p. 12), at the present term, we held that one’s place of business is deemed his dwelling, pro hac vice, and falls within the influence of the same principle. The defendant, Cary, being in his own law-office and place of business, was under no legal duty to retreat from any attack shown to have been made upon him by his adversary.

A private person may arrest another, where a felony has been committed, and he has reasonable cause to believe that the person arrested committed it, or for any public offense committed in his presence. — Code, 1876, § 4668. And he may arrest one for felony, on any day, and at any time. Upon making such arrest, it becomes every citizeu’s duty to take the alleged offender, “ without unnecessary delay,” before a magistrate, or to deliver him to a sheriff, constable, or other officer who may be authorized to make a lawful arrest, whose duty it is to “forthwith take him before a magistrate.” — Code, 1876, $ 4671. Conceding that the defendant had lawfully arrested the man Wells, upon reasonable cause to believe that he was guilty of a felony, it was his duty to take him before a magistrate without unnecessary delay, or to deliver him to Reynolds, who was a deputized constable, provided that it had been made to appear, under the rules above stated, that Nabors was a defacto officer at the time he issued the warrant. The former course he did not distinctly elect to pursue, having retained the prisoner in his custody for an entire day after his arrival at Montevallo. It was no excuse for his failure to deliver to the constable, that he was engaged, from about one o’clock in the afternoon until sun-set, in examining the prisoner, with the view of inducing him either to criminate others or himself in the alleged burglaries. Under the facts set out in the record, if the warrant was legal and valid, the constable had the right to have the custody of the prisoner; but otherwise, if the warrant was void for want of a defacto official status in Nabors at the time he issued it.

While a court has power to state admitted facts to the jury, in charging them, and, where the testimony is all in writing, to charge directly upon it, without referring its credibility to them ; yet, “ when a question of fact is involved, dependent on oral testimony, the credibility of the evidence must be referred to the jury ; and a charge assuming the credibility of the testimony is erroneous, though it is clear and undisputed.” — Tidwell v. The State, 70 Ala. 33; Bain v. The State, Ib. 4; 1 Brick. Dig. p. 336, §§ 8-9. In view of this principle, it was an invasion of the province of the jury, for the court to state what was shown or proved by the evidence in any of its phases.

We can not see that a discussion of the other rulings of the court would facilitate proceedings upon another trial of this cause, which necessarily follows its remandment. The phase of the case, and the bearing of the charges, may be greatly changed by the evidence, and many of the principles involved are familiar in view of their repeated discussion.' — Storey v. The State, 71 Ala. 329 ; DeArman v. The State, Ib. 351; Clark’s Cr. Dig. p. 4, § 26.

The judgment of the Circuit Court is reversed, and the cause is remanded. The defendant must, in the meanwhile, be retained in the custody of the law, until discharged by due process.