Hutchison v. State, 37190

• Citation: 318 P.2d 885
• Decision Date: 26 November 1957
• Docket Number: No. 37190,37190
• Parties: Bill HUTCHISON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 885

318 P.2d 885

1957 OK 300

Bill HUTCHISON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. 37190.

Supreme Court of Oklahoma.

Nov. 26, 1957.

Syllabus by the Court.

Where a county has several justice of the peace courts, in which the county attorney may file criminal complaints, the fact that he files more such complaints in every other such court than in one, or that he files none in the latter court, where it is not claimed or shown that such practice affects the administration of justice or violates the spirit or letter of any other law, does not constitute 'Gross partiality in office' on the part of the county attorney, as a ground for his removal under Tit. 22 O.S.1951 § 1181.

Appeal from the District Court of Seminole County; Bob Howell, Judge.

Action commenced by the presentation of an accusation and petition by a grand jury to the District Court of Seminole County, Oklahoma, for the removal from office of Bill Hutchison, as County Attorney of said County. After judgment entered on a verdict for the removal of Hutchison, he appealed. Reversed and remanded with directions to vacate judgment.

Walter Billingsley, Tom Smith, and Rudolph Hargrave, Wewoka, Frank Seay, Seminole, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., Joe C. Looney, County Atty., Seminole County, Wewoka, for defendant in error.

BLACKBIRD, Justice.

This is an appeal from a judgment, in accord with a verdict, removing Bill Hutchison, hereinafter referred to as defendant, from office as County Attorney of Seminole County. The action in which said judgment was entered September 2nd, 1955, was instituted under the provisions of Tit. 22 O.S.1951 § 1181 et seq., in the name of the State, by the filing, in the trial court, of an 'Accusation', dated June 15th of that year, presented to said court by a grand jury.

The accusation was divided into four separate 'Counts' dealing respectively with alleged: 'Habitual and wilful neglect of duty', 'Gross partiality in office', 'Corruption in office', and 'Wilful maladministration.' The allegations under the various Counts were set forth under various numbered 'Charges', except 'Count Two', where the allegations were set forth under only one charge as follows:

'Count No. Two

'That the Said Bill Hutchison Has Been Guilty of Gross Partiality in Office While Serving in His Present Term of Office.

'Charge No. 1.

'That Charles S. Carl was appointed Justice of the Peace of District No. 2, Seminole County, on the 14th day of January, 1955, and now is the duly appointed and acting Justice of the Peace in and for said District; that the said Charles S. Carl was actively engaged in the primary campaign of 1954 when Bill Hutchison was elected County Attorney of Seminole County, and that the said Charles S. Carl actively campaigned against the said Bill Hutchison in his race for County Attorney of Seminole County; that during the months of January and February, 1955, the County Attorney failed, refused and neglected to file any criminal cases before the said Justice of the Peace, Charles S. Carl, and during the month of March, 1955, filed only three or four criminal cases in Judge Charles S. Carl's court. The County Attorney filed practically all his criminal cases before Mr. Tom Greer, Justice of the Peace in District No. 1; that on or about the 20th day of January, 1955, one Tom Smith, an attorney and agent and supporter of Bill Hutchison, County Attorney, called upon said Judge Carl and advised him that the County Attorney would file some criminal cases before him and make him some money, provided the said Judge Carl would agree to support the said Bill Hutchison for County Attorney in 1956; the said Charles S. Carl refused to do so; that on or about the 10th day of February, 1955, the County Attorney, Bill Hutchison, told the said Charles S. Carl, 'Why should I help you make money to fight me with in the next election'; but that the said Charles S. Carl refused to enter into any such arrangement or agreement to support Bill Hutchison in the 1956 election; all of which constitutes gross partiality in office on the part of him, the said Bill Hutchison, County Attorney of Seminole County, Oklahoma.'

After all the evidence was in and before the case was submitted to the jury, the defendant both moved for a directed verdict and demurred to the evidence on '* * * each and every count and charge thereunder.' After these were overruled, and the jury had completed its deliberations, it returned a verdict finding defendant guilty on only Count Two, alleged as above quoted. By the judgment thereafter entered, this was the only ground upon which the defendant was removed from office, the journal entry of said judgment reciting, with reference to the other counts, as follows:

'It is further found, ordered, adjudged, and decreed by the court that there is a mistrial as to the other ten charges under Counts One, Two, Three and Four * * * due to the fact that the said jury, or nine or more of their number, could not agree upon a verdict as to the guilt or innocence of the defendant on the other ten charges.'

After the overruling of his motion for a new trial, and an amendment thereto, the defendant perfected the present appeal.

His argument for reversal is set forth under five propositions, the first four of which deal with alleged errors of a procedural nature. 'Proposition V' pertains directly to the merits of the controversy, and, if determined in his favor will be decisive of this appeal. Said proposition is as follows:

'The alleged failure of Bill Hutchison, County Attorney of Seminole County, to file as many criminal complaints before Charlie Carl, a Justice of the Peace at Wewoka, than he did before some other justices of the peace did not constitute gross impartiality in office.'

Both the State and the defendant herein agree that this is a case of first impression and that neither counsel has been able to find any reported decisions, or judicial precedents, on the question of whether a county attorney's neglect or refusal to file criminal complaints in the justice of the peace court of a particular justice of the peace is within the contemplation of the term: 'Gross partiality in office', as set forth in sec. 1181, supra...