Myers v. State
| Citation | 137 Okla. 272,1929 OK 230,278 P. 1106 |
| Decision Date | 04 June 1929 |
| Docket Number | Case Number: 20107 |
| Parties | MYERS et al. v. STATE. |
| Court | Supreme Court of Oklahoma |
¶0 1. Counties--Action to Remove County Commissioners on Accusation of Grand Jury a Special Proceeding.
An action to remove county commissioners on an accusation of a grand jury is a special proceeding.
2. Same--Procedure--Jury Trial.
The trial of a special proceeding for the removal of a county commissioner must be by a jury and conducted in all respects in the same manner as the trial of an indictment for a misdemeanor.
3. Same--"Conducted in All Respects in Same Manner as Trial of Indictment for Misdemeanor."
By the phrase, "conducted in all respects in the same manner as the trial of an indictment for a misdemeanor" (section 2404, C. O. S. 1921), it was intended to provide that in the introduction of evidence, as to the degree of proof required, and in the giving of instructions to the jury, the rules of law applicable in a trial upon an indictment for a misdemeanor should apply. Maben v. Rosser, 24 Okla. 588, 103 P. 674.
4. Same--Burden on State to Establish Allegations Beyond Reasonable Doubt.
At the trial of a special proceeding for the removal of a county commissioner on an accusation of a grand jury, the burden is upon the state to establish the allegations of the accusation beyond a reasonable doubt.
5. Same--Trial of Commissioners Charged with Joint Misconduct--Instructions Limiting Purpose of Evidence of Several Acts.
Where county commissioners are charged by accusation of a grand jury with joint misconduct, they may be tried together, and in the trial of the cause, where evidence is offered tending to show several acts of misconduct, the court should instruct the jury that such evidence is admitted only for the purpose of showing the guilt or innocence of the defendant who committed the several acts, and that the same is not to be considered against the defendants who did not commit the several acts unless the said acts were committed with their knowledge and consent.
6. Same--Necessity for Proof that Commissioner Participated in Act of Board Complained of.
A member of the board of county commissioners is responsible for his own acts and not for the acts of the other members of the board unless such acts are performed with his knowledge and consent, and a conviction of a member of a board of county commissioners on testimony that the board of county commissioners performed the act complained of will be set aside unless it is shown by the evidence that the member charged participated in the wrongful act of the board of county commissioners.
7. Same--Instruction Erroneous in Placing Burden of Proof on Defendant.
An instruction, in a trial of an action for removal of a county commissioner on an accusation by a grand jury, that the jury should find accused guilty unless the jury finds that the defendant exercised reasonable care and diligence and acted from honest and conscientious motives, places an unlawful burden upon defendant. In such a trial the burden is on the state to show that defendant did not exercise reasonable care and diligence or did not act from honest and conscientious motives.
Error from District Court, Kingfisher County; Lucius Babcock, Assigned Judge.
Action by the State to remove from office J. C. Myers and C. H. Wehrenberg, County Commissioners of Kingfisher County. From judgment of removal, defendants appeal. Reversed with directions.
Brownlee & Blaine, for plaintiffs in error.
V. D. Firestone, Co. Atty., Edwin Dabney, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for the State.
¶1 The plaintiffs in error were prosecuted jointly in the district court of Kingfisher county on an accusation of a grand jury, and after a verdict of guilty were removed from office by order and judgment of the district court.
¶2 There are many matters presented to this court on appeal which we deem unnecessary to consider for the reason that this cause must be reversed on at least one ground, and that is that the trial was not conducted according to law.
¶3 Under the provisions of section 2394, C. O. S. 1921, any officer elected to any county office may be removed from office for certain causes therein stated in the manner provided in that article. A part of the procedure is an accusation by a grand jury, of which the person accused must be given notice and to which he may object or answer. Under the provisions of section 2403, C. O. S. 1921, if he denies the matters charged, the court must proceed to try the accusation, and under the provisions of section 2404, C. O. S. 1921, the trial must be by a jury and conducted in all respects in the same manner as the trial of an indictment for a misdemeanor. Under section 2405, C. O. S. 1921, upon a conviction, the court must pronounce judgment that the defendant be removed from office.
¶4 In Maben v. Rosser, 24 Okla. 588, 103 P. 674, it was held that such proceeding is not a criminal proceeding, but is a special proceeding.
¶5 It was therein said:
"By the phrase, 'conducted in all respects in the same manner as the trial of an indictment for a misdemeanor,' it was intended to provide that in the introduction of evidence, as to the degree of proof required and in the giving of instructions to the jury, the rules of law applicable in a trial upon an indictment for a misdemeanor should apply."
¶6 The rules of law applicable in a trial upon an indictment for a misdemeanor provide (section 2692, C. O. C. 1921) that in case of a reasonable doubt as to whether the guilt of the accused is satisfactorily shown, he is entitled to be acquitted.
¶7 Instruction No. 4 was as follows:
¶8 This fixes the "degree of proof required" as a preponderance of the evidence. Under section 2692, Id., the degree of proof required is beyond a reasonable doubt.
¶9 This and other instructions given were erroneous in another particular. Three commissioners were accused. This court held, in State v. J. C. Myers, 132 Okla. 212, 270 P. 37, that the accusation on which these two commissioners were convicted "charged joint misconduct against the three defendants named and that they may be tried thereunder." Thereafter the accusation was dismissed as to Commissioner Spencer, and Commissioners Myers and Wehrenberg were tried jointly. They were, however, tried, not only for their "joint misconduct," but they were tried for their several acts of misconduct, and the court at no time instructed the jury that neither could be convicted for misconduct of the other. The instruction just quoted, as well as others, is general and applies to both defendants tried and in no wise differentiates between joint acts and several acts. It cannot be said that Commissioner Myers is guilty because of wrongful acts of Commissioner Wehrenberg in which Commissioner Myers did not participate, and Commissioner Wehrenberg cannot be convicted because of acts of Commissioner Myers in which he did not participate. And neither could be convicted because of acts of Commissioner Spencer in which neither of them participated.
¶10 The accusation, as held by this court in State v. Myers, supra, charged joint acts. Had it charged several acts, this court would doubtless have sustained the action of the trial court in dismissing the accusation as it did in dismissing count 7, which charged a several act. Count 1 charges that "* * * said board of county commissioners knowingly, willfully, wrongfully, entered into a contract. * * *" It does not charge that either Myers or Wehrenberg did so. County 2 charges that "* * * said commissioners of Kingfisher county, Okla., knowingly, willfully, and intentionally allowed and paid out of funds. * * *" It does not charge that either Myers or Wehrenberg did so. Under neither of these counts were either of the defendants charged with several acts of omission of commission. Nor was it charged that they acted jointly or for a common purpose. Notwithstanding, and over the objections of each of the defendants, the court permitted testimony as to the several acts, not only of the two commissioners on trial, but of the several acts of the commissioner against which the charges had been dismissed, and then, having done so, failed to instruct the jury that neither of the defendants was responsible for the several acts of the other and of which he had no knowledge prior to the time he acted.
¶11 We think that, under the accusation, these defendants could be convicted only of joint misconduct, but if either of them could be convicted of his several acts of misconduct, he certainly could not be convicted of the several acts of misconduct of the other, and where they were tried jointly and evidence of their several acts was admitted, there should have been an instruction limiting the effect of the evidence as to the several acts of the defendants to the defendant who performed or failed to perform the same.
¶12 As an instance of the form of instructions given, we quote the following:
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