Mays v. Robertson

• Decision Date: 29 November 1926
• Docket Number: 27
• Parties: MAYS v. ROBERTSON
• Court: Arkansas Supreme Court

288 S.W. 382

MAYS v. ROBERTSON

172 Ark. 279

No. 27

Supreme Court of Arkansas

November 29, 1926

Prohibition to Phillips Circuit Court; E. D. Robertson Judge; writ denied.

Application denied.

W G. Riddick, for appellant.

Brewer & Cracraft, for appellee.

OPINION

HUMPHREYS, J.

The petitioner herein is the duly elected, qualified and acting sheriff of Phillips County, Arkansas, whose term of office will expire on December 31, 1926. On the 5th day of November, 1926, the grand jury of said county returned an indictment against him, which, omitting caption and matters of form, is as follows:

"The said J. D. Mays, in the county and State aforesaid, on the 1st day of February, A. D. 1926, then and there being the duly elected, qualified and acting sheriff of Phillips County, Arkansas, and then and there knowing and having knowledge that A. L. Keller, W. B. Chaney, Clay Pryor, Eugenia Miller, and divers other persons, were then and there guilty of the crime of setting up, keeping and exhibiting certain gambling devices, commonly called slot machines, which said machines were adapted, devised and designed for the purpose of playing a game of chance at which money and property might be won or lost, in said county and State, did unlawfully, knowingly and willfully fail, neglect and refuse to give notice that said persons were so setting up, keeping and exhibiting the gambling devices aforesaid in the manner and form aforesaid and for the purposes aforesaid, to some judge or justice of the peace of Phillips County, Arkansas, in accordance with the statutes and laws in such cases made and provided, and did unlawfully, knowingly and willfully fail, neglect and refuse to arrest said persons aforesaid, who were so setting up, keeping and exhibiting the gambling devices aforesaid, in the manner and form aforesaid, and to carry them before some magistrate or court having jurisdiction to examine into the matter, as provided by law."

The respondent herein is the duly elected, qualified and acting judge of the First Judicial Circuit of the State, and was presiding over the circuit court in Phillips County at the time the indictment was returned against said petitioner.

On the 10th day of November, 1926, the petitioner herein applied to this court, by petition, for a writ of prohibition to prevent the respondent herein from suspending him from office during the pendency of the indictment, or before the final trial thereon, upon the following alleged grounds:

First, that the indictment failed to charge any offense.

Second, that there is no statute authorizing a suspension of petitioner from office before a trial, under the circumstances of this case.

Respondent filed his answer, joining issue upon the alleged insufficiency of the indictment to charge a crime, and the alleged want of authority to suspend respondent from office during the pendency of the indictment and before the final trial upon the charge contained therein.

A determination of the issues joined involves:

First, a construction of § 2633 of Crawford & Moses' Digest, under which petitioner claims the indictment was drawn; and

Second, whether § 10335 applies to the crime charged in the indictment.

1. The respondent claims that the indictment was drawn under § 2642 of Crawford & Moses' Digest, making it the duty of a sheriff to notify a judge or justice of the peace of the county, if it should come to his knowledge that any person is guilty of setting up gambling devices, etc., and a failure to do so is covered by § 10335 of Crawford & Moses' Digest, which provides for a suspension of a sheriff for such failure during the pendency of an indictment and before final trial. In arriving at this conclusion, the respondent contends that the last six lines of the indictment may and should be treated as surplusage. It is further claimed by the respondent that the language of the indictment is sufficient to charge a crime against petitioner under § 2633 of Crawford & Moses' Digest.

The petitioner claims that § 2642 of Crawford & Moses' Digest was repealed by § 2633 of said Digest, and that the facts stated in the indictment are insufficient to charge a crime against him under the latter section.

It is unnecessary to decide whether the former section is repealed by the latter, as we agree with respondent that the facts alleged in the indictment constitute a crime under the latter section. The facts stated in the indictment are that the petitioner, being sheriff of said county, and knowing that...