Phillips v. State

• Decision Date: 03 June 1919
• Docket Number: Case Number: 10328
• Citation: 1919 OK 168,75 Okla. 46,181 P. 713
• Parties: PHILLIPS v. STATE.
• Court: Oklahoma Supreme Court

1919 OK 168

181 P. 713

75 Okla. 46

PHILLIPS v. STATE.

Case Number: 10328

Supreme Court of Oklahoma

Decided: June 3, 1919

Syllabus

¶0 1. Elections--Betting on Election--Offense.

Making a bet or wager upon the result of an election of a subdivision less than the whole territory in which the vote is cast is a violation of section 2108, Revised Laws of Oklahoma of 1910.

2. Officers--Removal--Construction of Statutes--Habitual or "Willful Neglect of Duty."

Under subdivision I of section 5592, providing for a removal of an officer from office for a "habitual or willful neglect of duty," held, a willful neglect of duty means that the act or failure to act was for a bad or evil purpose, or when the officer conscientiously acts or fails to act contrary to a known duty, he must be guilty of some conscious wrong or inexcusable carelessness or recklessness in the discharge 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 an officer, will not justify a removal on the ground of habitual or willful neglect of duty.

3. Same--Verdict--Evidence.

The jury must believe from the evidence beyond a reasonable doubt the truthfulness of the accusation against an officer before a verdict can be returned against him.

Error from District Court, Bryan County; Chain Jones, Assigned Judge.

John A. Phillips was convicted of betting upon an election, and there was a judgment removing him from his office as sheriff of Bryan county. His motions for a new trial and in arrest of judgment were overruled, and he brings error. Reversed and remanded with directions to set aside the order removing defendant from his office and to dismiss the cause.

Utterback & MacDonald, C. A. Welch, and J. G. Ralls, for plaintiff in error.

S. P. Freeling, Atty. Gen., C. W. King, Asst. Atty. Gen., and Hayes & McIntosh, for the State.

HIGGINS, J.

¶1 A grand jury of Bryan county presented an accusation against John A. Phillips, its sheriff, containing 11 counts. Upon trial plaintiff in error was convicted upon count No. 1, but was acquitted upon all the other counts. A motion for a new trial and a motion in arrest of judgment were each overruled, to which exceptions were taken. The court entered its judgment removing the plaintiff in error from the office of sheriff of his county, from which judgment an appeal was lodged in this court.

¶2 Count No. 1, upon which plaintiff in error was convicted, alleges in substance that in the year 1918 two men (naming them) were candidates for the nomination of Governor on the Democratic ticket, and that plaintiff in error bet with one W. L. Townsend that in the city of Durant one of these candidates would not receive twice the number of votes that the other candidate would receive. The statute claimed to have been violated is set forth in section 2108, Revised Laws of Oklahoma of 1910, and is as follows:

"Any person who makes, offers or accepts any bet or wager upon the result of any election, or upon the success or failure of any person or candidate, or upon the number of votes to be cast either in the aggregate, or for any particular candidate, or upon the vote to be cast by any person, or upon the decision to be made by any inspector or canvasser, of any question arising in the course of an election, or upon any event whatever depending upon the conduct or result of an election, is guilty of a misdemeanor."

¶3 The prosecution for the removal of the plaintiff in error appears to have been commenced under the general statutes for the removal of officers, as set forth in article 4 of Procedure Criminal of the Revised Laws of Oklahoma of 1910, and the cause for removal upon the ground set forth in subdivision 1 of section 5592, supra, wherein it is provided that an officer may be removed from office for a "habitual or willful neglect of duty."

¶4 The case is briefed by the plaintiff in error on the theory that, unless the bet was upon general results of the governorship election, then no crime had been committed, and is briefed by the defendant in error on the theory that a bet upon the results of an election by a sheriff is a willful neglect of duty in contemplation of the statute and as set forth in subdivision No. 1 of the statute quoted above. As this prosecution appears to have been commenced under article 4, Procedure Criminal, supra, chapter 205 of the Sessions Laws 1917, mentioned in briefs, is not applicable to the case at bar.

¶5 The contention of plaintiff in error that a bet upon the result of the vote of the city of Durant, and not upon the final result of the vote of the whole state, in a governorship election or nomination, is not a violation of section 2108, above, we believe is untenable and not the law, and that no reasonable construction of the statute will justify such construction.

¶6 The only other question in this case left for the consideration of this court is the one presented by defendant in error that it is a willful neglect of duty for a sheriff to bet on the result of an election and fail to report it. It is not every neglectful official act of an officer that will authorize his removal. The word "willful" is not without meaning. Let us examine the authorities as to the meaning of "willful," as applies to an act of an officer. 22 Ruling Case Law 281, in discussing the subject, states:

"An act is considered done willfully when it is done with a bad or evil purpose, or when the officer conscientiously acts contrary to a sworn duty; but conduct may be

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