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decided: April 27, 1891.



Author: Fuller

[ 140 U.S. Page 126]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The following errors are assigned upon the record or specified in the briefs of counsel: (1) That the indictment was fatally defective in not alleging when and where the victim died: (2) That the court erred in denying defendants' motion

[ 140 U.S. Page 127]

     for separate trials: (3) And in entering a joint judgment against defendants and a joint sentence of death, and that the alleged judgment and sentence were not entered according to law, and the motion in arrest should have been granted: (4) That Judge Bryant should have granted the motions filed by each of the defendants to vacate and set aside the prior proceedings: (5) That the court erred in refusing to allow the wives of the defendants to testify, "as shown by bill of exceptions No. 2:" (6) Because there was no record at Paris showing that Judge Boarman was ever designated, appointed and authorized to hold the Circuit Court at Paris, except as shown in the bill of exceptions filed November 22: (7) That Judge Boarman had no legal authority to hold court at Paris: (8) That the only judgment ever rendered against defendants was entered of record on Sunday, November 3, and was void for that reason: (9) That no judgment in legal form has ever been entered adjudging defendants guilty of murder: (10) That the alleged judgment of November 15 was no judgment: (11) That Judge Bryant had no power to hold any part of the April term, 1890, at Paris, because Judge Boarman held the first part of that term without authority: (12) That the court erred in admitting certain testimony, as shown by bill of exceptions No. 1.

The original appointment of Judge Boarman to hold terms of the District and Circuit Courts for the Eastern District of Texas was made by the Circuit Judge, December 4, 1888, under section 591 of the Revised Statutes, on account of the disability of Judge Sabin, upon the certificate of the clerk at Galveston, and related to the November term, 1888, at Galveston, and the coming terms at Tyler, Jefferson, and Galveston, in the year 1889, and was duly filed in the clerk's office, and entered on the minutes of the District Court, at Galveston.

The statute of March 1, 1889, provided for two terms of the Circuit Court, at Paris, in that district, and Judge Boarman held the October term, 1889, at that city, apparently under the same appointment, no certificate of disability having been made by the clerk at Paris, and no new appointment having been filed or recorded there, as, indeed, was the fact as to the

[ 140 U.S. Page 128]

     appointment of December 4, 1888. Under section 596, Revised Statutes, the Circuit Judge, whenever, in his judgment, the public interest so required, could designate and appoint, in the manner and with the powers provided in section 591, the District Judge of any judicial district within his circuit, to hold the District or Circuit Court in place of, or in aid of, any other District Judge within the same circuit. This section contemplates that the appointment made under it should state what court the appointee was to hold, and that it was in place of the judge of the District Court, or in aid of him; and that the appointment should be filed and entered on the minutes, as provided in section 591.

Under section 602, when the office of judge of any District Court is vacant, all process, pleadings and proceedings pending before such court were continued, of course, until the next stated term after the appointment and qualification of his successor, except when that term might be held as provided in section 603. By the latter section, when the position of District Judge was vacant in any District Court in the State containing two or more districts, the judge of the other, or of either of the other districts, might hold the District Court or the Circuit Court in case of the sickness or absence of the other judges thereof, in the district where the vacancy occurred.

It was the opinion of Mr. Attorney General Black that the power to designate a District Judge to hold court in case of disability under section 591, as it originally existed in the act of July 29, 1850, 9 Stat. 442, c. 30, did not extend to the case of a vacancy. 9 Opinions Attys. Gen. 131. That opinion was given on the 23d of January, 1858, and by act of Congress of August 6, 1861, 12 Stat. 318, c. 59, the provision was made now embodied in section 603, Rev. Stat.

The State of Texas contained three districts, and Judge Boarman was not the District Judge of either. A vacancy was created by the death of Judge Sabin, March 30, 1889, yet Judge Boarman held the April term, 1890, until the succession of Judge Bryant. We are of opinion that the irregularities alleged did not place Judge Boarman, in holding the October term, in any other position than that of a judge de

[ 140 U.S. Page 129]

     jure, and that as to the April term, he was judge de facto if not de jure, and his acts as such are not open to collateral attack. Norton v. Shelby County, 118 U.S. 425; In re Manning, 139 U.S. 504; Clark v. Commonwealth, 29 Penn. St. 129; Fowler v. Beebe, 9 Mass. 231; Commonwealth v. Taber, 123 Mass. 253; State v. Carroll, ...

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