Commonwealth v. Chambers

• Decision Date: 09 February 1829
• Citation: 24 Ky. 108
• Parties: The Commonwealth v. B. S. Chambers.
• Court: Kentucky Court of Appeals

24 Ky. 108

The Commonwealth v. B. S. Chambers.

Court of Appeals of Kentucky.

February 9, 1829

Proceedings against a clerk, with a view to remove him from office, for breach of good behaviour. Upon a trial on the merits, the clerk was removed.

Crittenden and Richardson, for defendant.

OPINION

UNDERWOOD JUDGE:

Statement of the case.

This is a proceeding instituted against Chambers, clerk of the Scott circuit court, under the 10th section, of the 4th article of the constitution, to remove him from office, for breach of good behaviour. The process which issued against him contains the charges and sets out the breaches of official duty, for which this court is called on to remove him. For the purpose of presenting the nature and form of the process which has been sustained by this court, in this case, and also to exhibit the charges on which the prosecution is based, we have thought proper to copy the process at length. It is as follows:

" The Commonwealth of Kentucky, to the Sergeant of the Court of Appeals, greeting: We command you to summon Benjamin S. Chambers, clerk of the Scott circuit court, to appear before the judges of our court of appeals, at the capitol, in Frankfort, in the county of Franklin, on the 26th of November next, to answer to the following charges, exhibited against him, by the attorney general, for, and on behalf of the commonwealth, and to shew cause, if any he can, why he should not be removed from his office, as clerk aforesaid, for the following breaches of good behaviour in office, to-wit:--The said Chambers did, on or about the day of January, 1821, as clerk of the Scott circuit court, make out and certify officially, an order of the following purport, to-wit Kentucky, Scott circuit, to-wit: September term, 1820. Ordered to be certified to the auditor of public accounts, that the sum of thirty dollars be continued the allowance, for the support of Hans Peeples, a person of unsound mind, for three months, ending the 10th December, 1820, and that Aaron Holland, be continued a committee to receive and appropriate the same to his use and benefit; a copy attest, B. S. Chambers, C. S. C. C.," which order, certified officially, as aforesaid, as the order of the Scott circuit court, as its September term, 1820, the said Chambers, presented to the auditor of public accounts, about the day of with an endorsement as follows:-- " " Pay to B. S. Chambers," Aaron Holland $30, and the said Chambers, then, and there demanded, and received from said auditor, a warrant upon the treasury of this commonwealth, for said $30; which warrant, said Chambers, on said day, presented to the treasurer, and received the amount thereof, to-wit; $30.

Summons and charges.

" Whereas, in truth and in fact, there was no such order made by the Scott circuit court, at their September term, 1820, (a copy of which, the said order presented as aforesaid, to the auditor, and upon which the aforesaid warrant was granted) purported to be, nor was there any record in the office of said Chambers, clerk of said Scott circuit court, of any allowance of $30, or any other sum, at said September term, 1820, to said Peebles, or for his benefit; or in trust to said Holland, or any other person for him, and that said Chambers, at the time he certified the said paper, hereinbefore recited, and at the time when he presented the same to the auditor as aforesaid, and received the warrant, and at the time he received the said $30 from the treasury, well knew that no such record existed in the Scott circuit court.

2d. At the June term, 1821, of said Scott circuit court, the said court directed, and there was entered upon the records of said court, an order of the purport following:

Ordered to be certified, to the auditor of public accounts, that the sum of sixty dollars, be allowed for the support, and maintenance of Hans Peebles, a lunatic, for six months, commencing on the 10th day of March, 1821, and ending on the 10th day of September, 1821; and that John N. Lyle, be continued a committee to receive, and appropriate the allowance aforesaid to his support; and it is further ordered, that the sum of thirty dollars, be allowed for the purpose aforesaid, commencing on the 10th of September, 1820, and ending on the 10th of December, 1820, being omitted in a former order, through mistake.

And afterwards to-wit: the day of when said Chambers, clerk as aforesaid, was applied to by said Lyle, for a copy of the order last recited, to be presented to the auditor, for a warrant upon the treasury, for the allowance therein specified, he the said Chambers, clerk as aforesaid, made out, certified, and delivered, as a copy of said order, a paper of the following purport:

Scott Circuit, Sct. June term, 1821.

Ordered to be certified to the auditor of public accounts, that the sum of sixty dollars, be allowed for the support and maintenance of Hans Peeples, a lunatic, for six months, commencing on the 10th day of March, 1821, and ending on the 10th day of September, 1821, and that John N. Nile, be continued a committee to receive, and appropriate the allowance aforesaid, to his support.

A copy attest, B. S. CHAMBERS, c. s. c. c."

" The said Chambers, then and there, well knowing that the paper last recited, was not a full and complete or correct copy from the records of said court; but omitting wilfully and designedly, to copy and certify the latter part of said order of court, thereby the more effectually, to conceal the facts set forth in the first specification.

3d. An action of ejectment in the name of Alexander McClelland as lessor of the plaintiff against said B. S. Chambers, & c., had been instituted in said Scott circuit court, and prosecuted to judgment, and a judgment was rendered in favor of the lessor of the plaintiff and on the day of a ha. fa. as issued from the clerk's office of said court, and put into the hands of John N. Lyle a deputy sheriff of said county of Scott, to be executed, who in the pursuance of the command of said writ, executed the same, and delivered possession of the lands to the plaintiffs lessor, or his agent, and returned said process to the clerk's office of said court, the said Chambers, then being clerk thereof with his official return thereon endorsed, showing the manner in which he had executed the same that the said Chambers, clerk as aforesaid, instead of recording the said return, of said deputy sheriff, truly, and as it was made, in the book kept for that purpose, falsely and fraudulently recorded in said book, in the room of said return of said deputy sheriff, on said process, in substance as follows:

Returned without being executed, by agreement.

Attest, B. S. CHAMBERS, clerk."

And fraudulently suppressed, said ha. fa. returned as aforesaid; by means of which false and fraudulent conduct on the part of said Chambers, clerk as aforesaid, he was enabled to succeed, (and hold said land) in a subsequent controversy in court, in respect to it.

" 4th. The said Chambers, with intent to hold the land alluded to, in the third specification, and to defraud the plaintiff, in said ha. fa. the more effectually to consummate his object, suppressed the ha. fa. mentioned in said third specification, and made out another ha. fa. of like import; but without a return, endorsed thereon by the sheriff, and substituted it in the room of the other.

And this, he shall, in nowise omit, and have then there this writ. Witness, Jacob Swigert, clerk of our said court, at the capitol aforesaid, this 27th day of October, 1828, and in the 37th year of the commonwealth.

J. SWIGERT, C. C. A."

The proof in support of the charges, consists of record evidence, and parol testimony.

It is clearly proved, that Chambers presented at the auditors office, on the 5th of January, 1821, a paper purporting to be a copy of an order, of the Scott circuit court, made at the September term, 1820, continuing the allowance of $30 for the support of Hans Peeples, (a copy of which, is truly set out in the first charge) that he received a warrant on the treasury, for the amount, and receipted for it, on the back of the paper so presented at the auditors office, in these words: " Pay to B. S. Chambers, Aaron Holland." The allowance on the face of the order, appearing to have been made to said Holland, as committee for the lunatic, the object of the endorsement, seems to have been, to authorize Chambers to draw the money. It was proved, that the words " pay to B. S. Chambers" were in the hand writing of Chambers; but who wrote the signature of Aaron Holland, was not established. Holland himself was introduced as a witness. He stated that the thumb of his right hand had received an injury which had prevented him from writing with great uniformity, and said, the signature might, or might not be his, and did not say whether it was or was not. A report made to the Scott circuit court, at their March term, 1821, was presented, signed by said Holland, which stated in substance, that the allowance of $30, for three months, ending on the 10th of December, 1820, for the support of Hans Peeples, had been expended for his maintenance. The signature to this report, Holland recognized as his. The body of the report was proved to have been written in the hand writing of Chambers. Although Holland signed the report, he stated, that he had never received or expended a cent of the money allowed for the support of Peeples, as set out in the report. It was proved by Rhodes Thompson, who had been committee for Peeples, and who had declined to act in that capacity again, that at the request of the court, he had called on Holland, to ascertain whether he would act, that Holland declined acting, and that he so informed the court on the next day. ...