Elkins v. The Board of County Commissioners of The County of Wyandotte (Henry T. Zimmer

• Decision Date: 07 February 1914
• Docket Number: 18,621
• Citation: 138 P. 578,91 Kan. 518
• Parties: J. W. ELKINS, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE (HENRY T. ZIMMER, Intervenor), Appellees
• Court: Kansas Supreme Court

138 P. 578

91 Kan. 518

J. W. ELKINS, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE (HENRY T. ZIMMER, Intervenor), Appellees

No. 18,621

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. REWARD--"Arrest and Conviction"--"Special" Deputy Sheriff--May Recover Reward. Evidence that a person was a "special and nonpay" deputy sheriff implies that his activities in that regard were limited to performing acts specifically directed, and that he was under no obligation to devote time to investigating criminal offenses.

2. SAME. Such a deputy sheriff is not precluded by his office from claiming a reward offered for the arrest and conviction of an offender, where by his own efforts he has discovered by whom a crime was committed, and by what evidence this can be proved.

3. SAME. A person who discovers the perpetrator of a crime, and the evidence by which he can be convicted, may be entitled to a reward offered for the "arrest and conviction" of the offender, even although, having the power to make the arrest himself, he omits to exercise it, and permits some one else to take the defendant into custody.

J. McCabe Moore, and J. N. Baird, of Kansas City, for the appellant.

James Meek, county attorney, for appellee Board of County Commissioners.

T. A. Pollock, and E. C. Little, both of Kansas City, for the intervenor.

OPINION

MASON, J.:

The board of county commissioners of Wyandotte county offered a reward for the "arrest and conviction" of the person who had committed a murder. J. W. Elkins brought action against the county for the amount, asserting that he had met the conditions. H. T. Zimmer set up a conflicting claim, which he sought to enforce by interpleading. The county admitted its liability to one or the other of the claimants. Upon a trial the court sustained a demurrer to the evidence of Elkins and rendered judgment for Zimmer, which, was reversed on appeal. (Elkins v. Wyandotte County, 86 Kan. 305, 120 P. 542, annotated in 46 L.R.A. N.S. 662.) Upon a new trial judgment was again rendered in favor of Zimmer, and Elkins again appeals.

There was evidence tending to establish these facts: Elkins, learning of the offer of the reward, began an investigation of the case. By talking with one James McMahon he induced him to produce and turn over some articles, including a gun, which were hidden in a cornfield. He told the sheriff of this, stating that McMahon was the guilty person. The sheriff directed the undersheriff and Zimmer to send and get him. McMahon was arrested, and on being confronted with the articles found in the field, confessed. Elkins was at the time a "special and non-pay" deputy sheriff.

The description of Elkins as a "special and non-pay" deputy seems fairly to imply that while he held a commission as a deputy sheriff his activities in that connection were limited to serving such papers as might be delivered to him, or performing such other acts as might be specifically directed. Clearly he was under no obligation to devote time to the investigation of criminal offenses. This was evidently the view of the trial court, for the mere fact of Elkins' official character was not held to prevent his recovering the reward. A reversal is asked because of an instruction to the effect that it was the duty of any one seeking to earn the reward to do all he legally had a right to do towards the arrest of the murderer; that if Elkins was a deputy sheriff he had a legal right to arrest McMahon upon discovering him to be the murderer; and that if, having the right and the opportunity to make such arrest, he voluntarily chose not to do so, and Zimmer, acting for his own benefit and for himself, arrested McMahon, then Zimmer was entitled to the reward.

Public policy forbids an officer to claim a reward for merely doing his duty, but that is the extent to which his official character affects the matter. (Marsh v. Express Co., 88 Kan. 538, 129 P. 168; see, also, 24 A. & E Encycl. of L. 953; 34 Cyc. 1753; Note, Ann. Cas. 1912 C, 1294; Note, 43 L. R. A., n. s., 131; Hartley v. Inhabitants of Granville, [Mass. 1913] 216 Mass. 38, 102 N.E. 942.) If Elkins is entitled to the reward it is because of voluntary investigations, not required by his office, which resulted in discoveries leading to the arrest and conviction of McMahon. His official character can hardly enter into the matter, because as a private citizen he had authority to make the arrest. (The State v. Mowry, 37 Kan. 369, 377, 15 P. 282; Garnier v. Squires, 62 Kan. 321, 62...