Freas v. State ex rel. Freeling

• Decision Date: 17 February 1925
• Docket Number: Case Number: 13758
• Citation: 1925 OK 125,235 P. 227,109 Okla. 205
• Parties: FREAS, Sheriff, v. STATE ex rel. FREELING, Atty. Gen.
• Court: Oklahoma Supreme Court

1925 OK 125

235 P. 227

109 Okla. 205

FREAS, Sheriff, v. STATE ex rel. FREELING, Atty. Gen.

Case Number: 13758

Supreme Court of Oklahoma

Decided: February 17, 1925

Syllabus by the Court.

¶0 Where complaint is made of a paragraph of the court's instructions, this court will consider such paragraph in connection with its context, and where the offending paragraph contains a substantially correct statement of the law, and, when considered in connection with other paragraphs, could not reasonably mislead or confuse the jury, such instruction will be sustained. Neither will error be predicated on the refusal of a correct requested instruction, where the question presented is substantially covered by instructions given.

Upon an assignment of error which questions the sufficiency of the evidence to sustain the verdict, a judgment based thereon will not be disturbed, where there is evidence in the record reasonably tending to support the verdict. This court will not weigh conflicting evidence to determine on which side lies the preponderance.

Additional Syllabus by Editorial Staff.

In proceeding to remove sheriff from office, instruction that sheriff has duty to enforce criminal laws of state against violations of prohibitory liquor law and violations of gambling law, in conformity with Comp. St. 1921, §§ 1946 and 7036, was not prejudicial for failure to instruct as to correlative duties resting on other officers.

Action by the state of Oklahoma, on the relation of S. P. Freeling, Attorney General, against H. M. Freas, for removal from the office of sheriff of Osage county. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

This action was commenced in the district court of Osage county on December 17, 1921, by the filing in said court of a petition setting forth six causes of action for the removal of the defendant from the office of sheriff of said county. Upon the trial thereafter had, verdict was rendered in favor of plaintiff upon the second and third causes of action, all other causes of action having been withdrawn from the consideration of the jury by the instructions of the court except the fourth cause of action, and as to this there was a verdict in favor of the defendant.

The second cause of action charged willful neglect of duty on the part of the defendant in suffering and permitting gaming houses and games of chance to be operated and conducted in said county, in open violation of the law, and contrary to the lawful discharge of the duties enjoined upon the defendant as sheriff by the laws of the state of Oklahoma.

The third cause of action charged the defendant as such sheriff with willfully failing to perform his duties in the enforcement of the prohibitory law within said county and with suffering and permitting the operation and conducting of places within the county where intoxicating liquors were sold, bartered, and given away, openly and notoriously.

Defendant's answer to the second and third causes of action consisted of general denials. Upon the issues thus formed, the case was tried to a jury and resulted in a verdict finding the defendant guilty as charged in the second and third counts, and upon this verdict judgment was entered removing the defendant from office. After unsuccessful motion for new trial, defendant has brought the case here by petition in error with case-made attached for review. The parties will be hereafter referred to as plaintiff and defendant, respectively, as they appeared in the trial court.

L. P. Mosier, of Pawhuska, for plaintiff in error.

Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for defendant in error.

LOGSDON, C. (after stating the facts as above).

¶1 For reversal of this case defendant presents and argues ten assignments of error. Assignments 1 to 6, inclusive, complain of the action of the court in the giving and refusal of instructions. The first instruction complained of is paragraph 18 of the court's general charge to the jury. This paragraph of the instructions reads as follows:

"With reference to what is meant by willful failure or neglect of duty, as that term is used in the law of this state governing the removal of officers, and with reference to that term, or its equivalent, as it may be variously used throughout these instructions, you are advised that a willful failure or neglect of duty means that the act or failure to act was for a bad or evil purpose, or when the officer consciously acts contrary to a known duty, or consciously fails to act pursuant to a known duty. He must be guilty of some conscious wrong or inexcusable carelessness or recklessness in the discharge of, or a failure to discharge, an official duty. Mere thoughtless acts with no bad or evil purpose, in which there is no inexcusable carelessness or recklessness on the part of the officer, will not constitute such a willful failure or neglect of duty as is contemplated by the law of the state relating to the removal of officers, or by these instructions."

¶2 The criticism of this instruction is that it permitted the jury to find in favor of the plaintiff, if it should be satisfied by a preponderance of the evidence that gambling was being carried on or intoxicating liquor was...