State v. Geurts
| Decision Date | 03 February 1961 |
| Docket Number | No. 9281,9281 |
| Citation | 359 P.2d 12,11 Utah 2d 345 |
| Parties | d 345 STATE of Utah, Plaintiff and Respondent, v. Theodore I. GEURTS, Defendant and Appellant. |
| Court | Utah Supreme Court |
Pugsley, Hayes, Rampton & Watkiss, Salt Lake City, for appellant.
Walter L. Budge, Atty. Gen., Vernon B. Romney, Asst. Atty. Gen., Jay E. Banks, Dist. Atty., Quentin L. R. Alston, Salt Lake City, for respondent.
Defendant, Theodore I. Geurts, appeals from a jury verdict finding him guilty of malfeasance in office and a judgment entered removing him from his office as a commissioner of Salt Lake City, under our statute providing for removal of public officials on that ground. 1
He had been elected to a four-year term in that office in the regular city election in 1957, and took office in January of 1958. In July, 1959, the Salt Lake County Grand Jury returned an indictment charging him with the crime of neglect and misconduct in office in connection with six separate transactions. In that criminal proceeding, four of the six counts were dismissed on defendant's motion, and that proceeding remained in abeyance. Three months later the district attorney instituted this action to remove the defendant from office under Chapter 7, Title 77, U.C.A.1953, based on three counts of the Grand Jury indictment.
Count 1 charged that in May, 1959, J. W. Reed, a real estate agent, gave the defendant $119 purportedly as a belated campaign contribution, but in reality it was a 10% cut in a commission collected by Mr. Reed on a sale of real estate to the City.
Count 2 charged that the defendant had received for his own use and that of his son-in-law some trees, shrubs and top-soil from the city cemetery, and that these were delivered to and placed in the yards of their homes by city employees using city equipment.
Count 3 charged that as a means of granting favors to certain city employees the defendant caused them to be paid overtime for time not actually worked.
At the close of the State's case the court granted defendant's motion to dismiss Count 1. The jury returned a verdict of guilty on Count 2 and not guilty on Count 3.
Seeking a reversal, or a new trial, the defendant makes a number of attacks against the judgment, the principal ones are:
A. That the statute is unconstitutional.
B. That the district attorney had no authority to institute the action.
C. That a mistrial should have been granted when count one was dismissed.
D. That the court erred in denying defendant's request to take depositions.
A. Defendant contends that the phrasing of the statute authorizing removal for 'malfeasance in office' is so indefinite that it should be declared unconstitutional for vagueness, citing numerous cases where criminal statutes have been declared invalid for that reason. 2 It is not to be doubted that a penal statute must be sufficiently definite to provide a guide for those governed by it. It is also true that the basic meaning of the term 'malfeasance' is evil doing. In that sense it is admittedly somewhat general and difficult of precise definition as is acknowledged in criminal law texts and other legal publications referred to by the defendant. 3 But it is significant that despite the fact that malfeasance was recognized at common law, and has been widely used in constitutions and statutes, no authority has been cited or found which holds it to be so vague as to render a statute unconstitutional. On the contrary, by usage the phrase 'malfeasance in office' has acquired a commonly understood meaning: it requires an intentional act or omission relating to the duties of a public office, which amounts to a crime, or which involves a substantial breach of the trust imposed upon the official by the nature of his office, and which conduct is of such a character as to offend against the commonly accepted standards of honestly and morality.
The above meaning of the term is so well known what it was used in our state constitution, Art. VI, Secs. 19 and 21, which provide for the removal of public officials for 'malfeasance in office'; and the statute under attack simply implements those provisions. It is our opinion that the phrase is sufficiently definite to enable people of ordinary intelligence and understanding to know what conduct is required or prohibited and that it is, therefore, not so vague or uncertain as to be invalid. 4 Our conclusion is reinforced by the well-known precept that any doubts must be resolved in favor of constitutionality. 5
B. The defendant makes what we regard as a somewhat strained argument that this action could not properly be instituted by the district attorney without a prior request having been made to the attorney general. He bases this on the provisions of Rule 65B(b) and (c) U.R.C.P.: that where a person usurps a public office or does an act which works a forfeiture thereof the attorney general may commence an action and that only if he refuses to do so after notice, others may bring such a proceeding. Implementing this he points to Rule 1 which states that the Rules of Civil Procedure shall '* * * govern the procedure * * * in all special statutory proceedings, except as stated in Rule 81'; and the latter provides that such Rules shall apply to all special statutory proceedings, except insofar as such rules are by their nature 'clearly inapplicable.' The answer to the above argument is that Section 2 of Chapter 7, under which this action is brought, expressly authorizes the district attorney to bring it. This specific provision makes the general rules above referred to 'clearly inapplicable' to this proceeding and takes precedence over them. 6
C. The essence of the defendant's argument that he was entitled to a mistrial at the time the court dismissed count 1 is that, conceding the acts charged in the other two counts would justify finding him guilty of malfeasance in office, they were trivial and that except for the evidence on the real estate transaction, which tended to impugn his honesty, the jury would not have found him guilty on count 2.
This argument is untenable. In the nature of some types of criminal proceedings it is oftimes necessary to charge violations in separate counts. If a dismissal on one count would entitle a defendant to a mistrial on the others, insuperable obstacles to the conduct of such proceedings would exist. The prosecution could never proceed upon multiple counts unless it was absolutely certain of convincing the trial court that the case could go to the jury on all of them. Otherwise, if the defendant obtained a dismissal on any count, he would be entitled to a mistrial, and the whole proceeding would have been in vain. The argument might be carried further: if a jury found a defendant guilty on some counts and not guilty on others, he could as plausibly argue that they should not have heard the evidence pertaining to the counts on which he was found not guilty, and that he should have a new trial. Court proceedings of necessity have to be more practical than that.
The real estate transaction was entirely separate and unrelated to the matters charged in the other two counts. We see nothing about the charge or the evidence relating to it to confuse the jury or to make it difficult to consider separately the evidence in regard thereto as bearing only on count one. The jury was properly so instructed and it is to be assumed that they gave separate consideration to that count in accordance with the instructions given.
Losing counsel in an overzealous effort to find some error upon which to pull the chestnuts of a lost cause out of the fire often seize upon any figment as having prejudiced the jury or dissuaded it from the performance of its duty. If this were as easily accomplished and juries were as fragile as such counsel are wont to contend, the system would have expired of its own folly long ago. The fact that it has worked so satisfactorily and survived so long as a means of determining issues of fact and settling controversies is the best testament that such is not the case; and that jurors are, in the main, practical, down-to-earth people motivated by a sincere desire to honestly and conscientiously perform their function and to do justice. The soundness of the jury system rests on this assumption and it must be so assumed in each case until something appears to persuade the court to the contrary. No such circumstance is shown here.
It was the prerogative and the duty of the trial judge to grant a mistrial if it appeared that something had occurred that prevented a fair trial, and the ends of justice so required; and because of his advantaged position he is allowed considerable discretion with respect thereto. There is no indication here that he abused his discretion in refusing to grant the motion.
D. The most serious attack upon the judgment is that the court erred in rejecting defendant's request to take depositions of the witnesses. We willingly concede that it is difficult to understand why the district attorney opposed the taking of depositions. He may have misconceived his duty. Notwithstanding the fact that under our adversary system it is essential that he represent and safeguard the interests of the State, it is neither necessary nor desirable that a prosecutor conduct either a persecution or an inquisition. His responsibility is to assist in an inquiry into the facts to ascertain the truth to the end that justice be done. While we do not deem it to be grounds for reversal here, for reasons explained below, we are not favorably impressed with the failure to permit the taking of depositions of the witnesses.
This proceeding can properly be regarded as quasi-criminal. Section 11 states that 'the trial must be by jury, and shall be conducted in all respects in the same manner as the trial * * * for a felony.' From a survey of the chapter (77-7 U.C.A.1953) it appears that the legislature thought the interests of the public in combating...
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State v. Jones
...question based on the facts of this case, should the problem recur. 1 In this respect differing from the recent case of State v. Geurts, 11 Utah 2d 345, 359 P.2d 12.2 Int.Rev.Code of 1954, Section 7203.3 That statutes should be looked at as a whole and in light of the purpose, see Andrus v.......
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Granato v. Salt Lake County Grand Jury
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...[5] Under the Utah Rules, depositions may also be taken in some state statutory proceedings. See URCP 1(a) and 81(a); State v. Geurts, 359 P.2d 12, 16 (Utah 1961). [6] Rule 30(b)(1). Rule 5(a) suggests that there may be situations in which a court would order that service of a deposition no......