Bucklew v. State, 26
| Decision Date | 21 November 1966 |
| Docket Number | No. 26,26 |
| Citation | 192 So.2d 275 |
| Parties | Henry BUCKLEW v. STATE of Mississippi. Misc. |
| Court | Mississippi Supreme Court |
L. Percy Quinn, Laurel, Noel W. Buckley, Jackson, L. A. Gily, Jr., Laurel, for appellant.
William M. Deavours, Laurel, Joe T. Patterson, Atty. Gen., by W. D. Coleman, Asst. Atty. Gen., Jackson, for appellee.
ON MOTION FOR STAY OF REMOVAL FROM OFFICE PENDING APPEAL
Henry Bucklew, movant, was convicted of attempting to embezzle funds of the City of Laurel. Miss.Code Ann. § 2122 (1956). He was fined $816.05, and the judgment of the Circuit Court of Jones County ordered his removal from the office of mayor, and declared that office vacant. This part of the judgment was based upon Mississippi Constitution section 175, and Mississippi Code Annotated, section 4053 (1956), which provide, respectively:
Section 175. All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.
Section 4053. Removals from office. If any public officer, state, district, county, or municipal, shall be convicted of misconduct or misdemeanor in office, or of any felony * * * the court, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.
On motion for new trial, the circuit court refused to supersede the removal from office. Bucklew filed a cost bond and appearance bond, superseding the fine pending appeal. The case on the merits has been properly appealed.
The day after the sentence, the governing authorities of the city adopted a resolution declaring the office of mayor to be vacant, appointing an interim mayor until a successor is elected and qualified, and ordering a special election to be held January 17, 1967. A commission has been issued by the Covernor to the interim mayor, who has been duly installed.
Bucklew filed in this Court a motion for 'remedial relief,' asserting that, since he perfected an appeal with supersedeas, the stay should operate also as a supersedeas of his removal from office pending appeal. The State and the City of Laurel oppose the motion.
The question is whether a pending appeal from Bucklew's conviction and removal from office, under the Constitution and statute, has the effect of superseding his removal from office. We do not think it does. Constitution section 175, without qualification, provides that 'upon conviction,' the public officer 'shall be removed from office.' Code section 4053 directs the trial court, in addition to any other prescribed punishment, to 'adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.' Here again there is no stated limitation resulting from an appeal.
Movant argues that his removal from office is an inseparable part of the entire judgment rendered by the trial court, and, considering that judgment as an entirety, the removal is suspended. Cited as authority for this proposition is Mississippi Code Annotated section 1175 (1956). However...
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Frazier v. State By and Through Pittman
...It is also a self-executing section, and more specific than many, perhaps most, constitutional provisions. See, e.g., Bucklew v. State, 192 So.2d 275 (Miss.1966) (Sec. 175 held self-executing); In re Initiative Petition No. 281 v. Rogers, 434 P.2d 941 (Okla.1967). It prohibits an individual......
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Payton v. State
...by this Court, the conviction stands.... Id. (quoting Nicholson v. State , 254 So.2d 881, 884 (Miss. 1971) (citing Bucklew v. State , 192 So.2d 275 (Miss. 1966) ) ). The Court then discussed an Indiana Supreme Court decision that rejected abatement ab initio in favor of dismissing a decease......
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