Cornell v. Mason

• Decision Date: 13 April 1928
• Docket Number: 4915
• Citation: 268 P. 8,46 Idaho 112
• Parties: A. CORNELL, Respondent, v. OSCAR Y. MASON, Appellant
• Court: Idaho Supreme Court

268 P. 8

46 Idaho 112

A. CORNELL, Respondent, v. OSCAR Y. MASON, Appellant

No. 4915

Supreme Court of Idaho

April 13, 1928

JUDGMENTS-INFERIOR COURTS-DEFICIENCY IN FORM-COMMITMENT-CERTIFIED COPY OF JUDGMENT-OUSTER PROCEEDINGS-EVIDENCE.

1. A judgment of an inferior court is scrutinized as to form with less severity than are similar judgments of courts of general jurisdiction.

2. Ordinarily, mere deficiency in form does not invalidate judgments of justices of the peace, if it may be determined with reasonable certainty, from the form in which the judgments are entered, what was meant, and that they are intended to be final judgments.

3. Failure to deliver to sheriff certified copy of judgments of imprisonment along with commitments, as required by C. S sec. 9257, rendered the commitments merely defective, or irregular rather than void, and sheriff was without authority of his own motion to release prisoners because of the defective form of the commitments.

4. After judgment of conviction, the imprisonment rests on the judgment, and the mittimus is only the evidence of authority to confine the prisoner, and a prisoner who has been properly and legally sentenced cannot be released on habeas corpus simply because there is an imperfection in the mittimus.

5. In summary action under C. S., sec. 8684, as amended by Laws 1923, chap. 97, to oust sheriff by reason of neglect of duty and unauthorized release of prisoners, evidence of alleged neglect of duty by defendant, other than those chargeable in the information, such as permitting prisoner to stay home overnight unattended, held properly admitted, as bearing on questions of defendant's intent or motive.

6. If a prisoner confined in jail is permitted to go at large out of jail, except by virtue of a legal order or process, it is an escape, under C. S., sec. 9418, and a sheriff permitting such freedom to a prisoner commits wilful neglect of duty, which is made a felony by sec. 8151.

7. In summary action under C. S., sec. 8684, as amended by Laws 1923, chap. 97, to oust sheriff from office, evidence that defendant had released prisoners, contrary to sec. 9436 after having been warned by prosecuting attorney and probate judge, held to sustain finding that defendant's neglect of duty was committed in "bad faith," within meaning of the statute; the term "bad faith" not being intended as synonymous with "corruptly," which necessarily involved some affirmative ulterior motive whereas "bad faith" may involve merely the absence of a proper motive.

8. Findings of the trial judge on conflicting evidence will be sustained if they are supported by any view of the evidence.

9. In summary action under C. S., sec. 8684, as amended by Laws 1923, chap. 97, to oust sheriff by reason of unauthorized release of prisoners, error, if any, in admitting nunc pro tunc amendments to judgments of imprisonment was harmless where judgments as they originally existed were sufficient authority for the imprisonment.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Wm. A. Babcock, Judge.

Summary action for ouster of public officer. Judgment for plaintiff. Affirmed.

Affirmed.

D. L. Rhodes, S. Ben Dunlap and Rice & Bicknell, for Appellant.

A commitment either from the justice's court or the district court consists of or must contain a certified copy of the judgment. (C. S., secs. 9048, 9257; Ex parte Ring, 28 Cal. 247; Ex parte Dodson, 31 Cal. 497; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; Ex parte Nakanishi, 19 Cal.App. 552, 126 P. 508; 16 C. J., p. 1328, sec. 3120.)

Bad faith is the opposite of good faith. It imports an actual and wilful intent to do something illegal or wrongful. In civil cases it is about equivalent to fraud, actual or constructive. (Penn Mutual Life Ins. Co. v. Mechanic's Bank & Trust Co., 73 F. 653, 19 C. C. A. 316, 38 L. R. A 33; Hilgenberg v. Northrup, 134 Ind. 92, 33 N.E. 786; Morton-Bliss v. New Orleans & S. Ry. Co. & Immigration Assn., 79 Ala. 590.)

Delana & Delana, for Respondent, file no brief.

BRINCK, Commissioner. Wm. E. Lee, C. J., and Givens and T. Bailey Lee, JJ., concur.

OPINION

BRINCK, Commissioner

From a judgment of the district court removing him from office as sheriff of Canyon county, and assessing against him the statutory penalty of $ 500, together with costs, the defendant, Oscar Y. Mason, appeals. The action is brought under C. S., sec. 8684, as amended by Sess. Laws 1923, chap. 97, which is as follows:

"When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of wilfully charging and collecting illegal fees for services rendered or to be rendered in his office, or has knowingly, wilfully, and corruptly or in bad faith, refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than 20 days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $ 500 to be paid into the school fund, and a judgment in favor of the informer for such costs as are allowed in civil cases."

The information charges eleven separate instances of alleged neglect to perform official duties, each of them being charged as committed knowingly, wilfully and corruptly, and separately charged as being committed knowingly, wilfully and in bad faith. As to five of the instances of neglect charged in the information, the court found that the defendant had neglected his duties in the respects charged, and that such acts were done knowingly, wilfully and in bad faith. As to the other charges, the court either expressly found for the defendant, or there was no evidence introduced. The neglect in all cases is alleged to consist in the failure of defendant to keep prisoners that had been committed to him under judgment or order of court.

The facts as to the various instances in which the court found against the defendant are in brief as follows:

One Clint Allen pleaded guilty in justice's court to a misdemeanor, and was sentenced to 30 days and committed to the appellant. After having served 18 days, he escaped from custody, and was recaptured by one of appellant's deputies almost a year later. At the direction of appellant, this prisoner was released immediately upon his recapture, appellant testifying that it was because the prisoner was a bad character, frequently in the jails, and offered to leave the county and never return if he were released; and appellant considered it for the public benefit that the prisoner's promise be accepted. As a substantive charge upon which to base the judgment, the information is defective as to the Allen case, in failing to charge a commitment to appellant; but, as bearing upon the good faith of appellant, the finding is properly to be considered.

One Peggy Roberts was arrested and brought before a magistrate upon a conspiracy charge on February 18, 1926. The magistrate set the preliminary examination for February 20, 1926, and issued a commitment to defendant, commanding him only to receive her into his custody and have her before the magistrate on February 20, 1926. Appellant complied with the terms of this commitment in all respects, but at the adjournment of the magistrate's court on February 20th, the appellant was not present, and the magistrate continued the hearing until February 23d, and, without making any further order concerning her custody, permitted the prisoner to leave the courtroom unattended. She voluntarily appeared at the sheriff's office, and was admitted to the jail, and later, the same day, was released by the appellant, which release is the gravamen of the charge against appellant on this count. It is obvious that he had no authority at that time to detain her, and the evidence does not sustain the finding of the court on this charge.

E. Holloway, on December 24, 1925, was released from the Canyon county jail, after having served 44 days of a 60-day sentence. Though there is evidence in the record to the effect that the release was made by a deputy without appellant's knowledge and against his express direction, it appears that appellant made no effort to retake the prisoner for further imprisonment, though he was again apprehended on another charge.

Martin Barrenechea was, on November 27, 1925, sentenced by the district court in Canyon county to serve four months in the county jail, and to pay $ 200 fine, for possession of intoxicating liquor. He was received by the sheriff on that date, and was released on March 11, 1926, having paid $ 190 of the fine assessed. The commutation of this sentence had not been ordered by the probate judge, and appellant's testimony that the release was acquiesced in by the prosecuting attorney is contradicted by the latter. It was one day short of the time when an order for such release would have been lawful.

J. A Oberst, Bert Stivers and John Kuchta were sentenced by a justice of the peace in Nampa to each serve five days in the Canyon county jail, and to pay $ 5 costs, the fine, if not paid, to be served out in jail. Defendant received the prisoners at Nampa, and before he reached Caldwell with them released them. He testifie...