Mccasland v. Bd. of Com'Rs of Adair Cnty.
| Decision Date | 26 July 1927 |
| Docket Number | Case Number: 17712 |
| Parties | McCASLAND v. BOARD OF COM'RS OF ADAIR COUNTY. |
| Court | Oklahoma Supreme Court |
¶0 1. Counties--Removal of Officers -- Sufficiency of Petition. An unverified motion to quash a petition for removal of a county officer containing allegations unsupported by evidence is properly overruled where such petition on its face and by the attested signature thereto shows the action to be instituted by the proper party. As to whether a proper resolution was passed authorizing the commencement of the action, in the absence of contrary evidence, the presumption must be indulged that officers do their duty.
2. Customs and Usages--Inadmissible When Repugnant to Statute. It is not error to reject evidence offered to prove a custom repugnant to the express provisions of the statute.
3. Sheriffs and Constables--Removal of Sheriff not Criminal Proceeding--Quantum of Proof. A proceeding under the provisions of section 2407, Compiled Oklahoma Statutes, 1921, for the removal of a sheriff is not a criminal proceeding, but is a special proceeding, and it is not necessary to prove the guilt of the defendant beyond a reasonable doubt; it is sufficient and proper to instruct the jury that guilt of maladministration as charged must be proved by a clear preponderance of the evidence, notwithstanding section 2404, Compiled Oklahoma Statutes, 1921, which provides that the trial must be by jury and conducted in all respects in the same manner as the trial of an indictment for a misdemeanor.
4. Same--Evidence Sustaining Removal of Sheriff. Record examined, and held sufficient to warrant the judgment of removal based upon a verdict of guilty under counts 2 and 3 of the allegations of the petition.
R. Y. Nance, for plaintiff in error.
George F. Short, Atty. Gen., and V. P. Crowe, Asst Atty. Gen, for defendant in error
¶1 Action was brought by the board of county commissioners of Adair county for the removal of plaintiff in error from the office of sheriff of said county. The petition filed alleged in 13 counts the willful maladministration and corruption in office and failure to account for all funds coming into the defendant's hands. On the trial of the cause, counts 7, 8, 9, and 11 were dismissed. On March 20, 1926, after a trial by jury, a verdict of guilty was rendered as to counts 2, 3, and 10, and a verdict of not guilty was rendered as to counts 4, 5, 6, 12, and 13. Upon the verdict of the jury the court rendered judgment removing the defendant Tom McCasland from the office of sheriff of Adair county, and after a motion for new trial was filed and overruled the defendant perfected this appeal.
¶2 The counts upon which the defendant was convicted are as follows: Count 2, being that McCasland, as sheriff, permitted one Led Girdner to run at large during the time he was ordered committed to the county jail for violation of the liquor law; count 3, being that McCasland, as sheriff, permitted one Charley Worley to run at large during the time he was committed to the county jail for a violation of the liquor law; count 10, being that McCasland retained one Led Girdner as deputy sheriff in his office during the time the said Led Girdner was under a sentence for violation of the liquor law and under commitment to serve a term of 30 days in said county jail and pay a fine of $ 50.
¶3 Evidence offered on behalf of the state shows that Girdner was on September 12, 1925, sentenced to serve a term of 30 days in the county jail of Adair county and to pay a fine of $ 50; that ten or twelve days after such sentence, and prior to the expiration of such sentence, Girdner was seen in a cow pasture adjoining the town of Stilwell; that Girdner was then carrying a gun. C. A. Mallow testified he saw Girdner on the streets of Stilwell almost every day during the months of September and October, and that Girdner helped make an arrest in Stilwell between September 12, 1925, and January 1, 1926 Mallow testified he saw Charley Worley nearly every day on the streets of Stilwell. Witnesses Bouquet and Brannon testified that in October, 1925, Girdner helped make a raid in Adair county some 12 or 15 miles from the county seat. The evidence shows that Girdner also arrested one Baxter Sanders on December 24, 1925. John Hughes testified that he was working prisoners on the road from September 7th to September 20, 1925; that he went to the sheriff's office at the courthouse to get the prisoners in the morning and returned them to the jail in the evening, and that on many of these occasions he saw Girdner sitting in the sheriff's office, and that he saw Charley Worley around the town of Stilwell nearly every day during that time; that he never saw Girdner or Worley in the county jail of Adair county, though he was frequently there to get the prisoners to work on the road; that on one occasion he asked Sheriff McCasland if he could not work the prisoner Worley on the road, and that McCasland asked Deputy Sheriff Patterson where Worley was, and Patterson told McCasland that Worley was up at his (Worley's) store working on the books, and that McCasland told the witness to go ahead that day without Worley and that he could take him the next morning, but that he never at any time either saw Worley in jail or worked him on the road. Bill Barker testified that he saw Girdner on the streets of Stilwell nearly every day between September 12, 1925, and January 1, 1926, and that he saw Worley nearly every day on the streets of Stilwell from July, 1925, to the date of this trial, March 18, 1926. Several other witnesses testified that they were arrested by Girdner between the dates of September 12, 1925, and January 1, 1926. Worley, as witness for the plaintiff, testified that he was convicted of violating the liquor law and sentenced to serve 60 days in jail and pay a fine of $ 400; that he was committed to jail on October 21, 1925, and stayed in jail one night under said commitment; that he cooked for the prisoners of the jail 23 days, but went home every night during said time, and spent the night at home, and that he worked in his store at Stilwell during the 23 days he was cooking, except at mealtime, and that after he cooked for the prisoners 23 days be got busy in his store and did not come back, and that he had been at liberty since and had not paid his fine or cost; that Sheriff McCasland asked him about paying the fine while he was cooking; that he saw McCasland frequently on the street during that time. Girdner testified for the defendant that he served 38 days in jail, but that he spent only a few nights of that time locked in jail; that he swept the courthouse and cooked and stayed in the kitchen; that he went to his home, 12 or 15 miles from the county seat, alone; that he frequently sat in the sheriff's office and talked; that he served several processes and acted as deputy sheriff from November 1, 1925, to January 1, 1926, and made several arrests and searched one place before his fine had been paid or served out.
¶4 The defendant McCasland testified that he did not know whether Worley was in jail or out during the time he was under commitment and did not know how many days Girdner served of his sentence. There was no evidence offered to show that Worley served his time in jail, but at the time of trial he was still at large notwithstanding his fine had not been paid. For reversal it is contended that the court erred in overruling the motion to quash the petition on the ground of insufficiency. It is said that the resolution authorizing the proceedings for removal was signed and passed upon by the chairman of the board of county commissioners and one member thereof only, and without the participation of the third member of the board of county commissioners.
¶5 The record does not contain the resolution passed by the said board, neither is there any evidence that said resolution was voted upon by the number and in the manner stated. The petition for removal is shown by the record to have been signed by the county commissioners of Adair county, by O. H. Worley, chairman. There is a motion on behalf of defendant to quash the petition. The motion is not attested and is signed by the attorney for the defendant. Plaintiff in error bases his argument upon section 5783, Compiled Oklahoma Statutes, 1921, which is as follows:
"When the board of county commissioners are equally divided on any question, they shall defer a decision until the next meeting of the board, and then the matter shall be decided by a majority of the board."
¶6 There is no evidence that the board of county commissioners were equally divided. The resolution of the board of county commissioners not being contained in the record, we do not know the manner, nor the time when the final decision of the board of county commissioners was made. See Mahr v. Board of County Commissioners, 26 Okla. 628, 110 P. 751. We indulge the presumption that officers do their duty. We think the contention is without merit.
¶7 It is next contended that the court erred in refusing to permit the plaintiff in error to prove that it was the custom of sheriffs of Adair county to permit prisoners to run at large. Plaintiff objected to the proof of the custom on the ground that custom or usage could not vary the terms of a positive statute of the state.
¶8 Section 5898, Compiled Oklahoma Statutes, 1921, is as follows:
"The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable."
¶9 Section 1663, Compiled Oklahoma Statutes, 1921, is in part as follows:
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