State v. Savage

• Decision Date: 12 December 1889
• Citation: 89 Ala. 1,7 So. 7
• Parties: STATE EX REL. ATTORNEY GENERAL v. SAVAGE.
• Court: Alabama Supreme Court

7 So. 7

89 Ala. 1

STATE EX REL. ATTORNEY GENERAL v. SAVAGE.

Supreme Court of Alabama

December 12, 1889

W L. Martin, Atty Gen., for the State.

H C. Tompkins and Jos. A. Walden, for respondent.

CLOPTON J.

This case, which is an impeachment proceeding against R. R Savage, judge of probate of Cherokee county, instituted in this court, is submitted on a motion to quash the information on the fourth, fifth, ninth, and tenth grounds, and on a demurrer to the other grounds.

In respect to the impeachment of public officers, a jurisdiction not theretofore existing is created by the constitution and statutes, and the mode of its exercise provided, to which the proceeding must substantially conform. Section 4840, Code 1886, provides: "It shall be the duty of the attorney general to institute proceedings under this chapter, and prosecute the same against any officer included in section two, article seven, of the constitution, [which includes judges of probate,] when the supreme court shall so order, or when the governor shall, in writing, direct the same, or when it appears from the report of any grand jury that any such officer ought to be removed from office for any cause mentioned in the first section of this chapter." The causes mentioned are: "Willful neglect of duty corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith." Section 4818. Whether such proceedings shall be instituted is not rested on the discretion of the attorney general; authorization in one of the statutory modes is essential to uphold the proceeding. The present information purports to be founded on the report of a grand jury.

The fourth and fifth objections are substantially the same, though varied in form, namely, it does not appear that the alleged report was made by a grand jury of Cherokee county to the circuit court for that county. The information recites that the proceeding is instituted on the report of a duly organized grand jury of Cherokee county; that it was made to the circuit court at the July term, 1889, and entered on the minutes of the court; and that a certified copy, which accompanies the information, was transmitted to the attorney general. When the information refers to the report of a grand jury, and is accompanied by it, as the authorization, this is prima facie sufficient to uphold the proceeding, without the contents being specifically set forth in the information itself.

The ninth and tenth grounds of the motion are that the facts constituting the misconduct with which the defendant is charged are not set forth in the report of the grand jury, as required by the statute. Section 4839 of the Code declares "It shall be the duty of every grand jury to investigate and make diligent inquiry concerning any alleged misconduct or incompetency of any public officer in the county which may be brought to their notice; and if, on such investigation and inquiry, they find that such officer, for any cause mentioned in this chapter, ought to be removed from office, they shall so report to the court, setting forth the facts, which report shall be entered on the minutes." It was held in State v. Seawell, 64 Ala. 225, that setting forth the facts in the report is essential to the authority of the prosecuting officer to institute such proceeding; and, though the facts need not be set forth with the accuracy usually required in pleading, unless the report contains a succinct statement, showing the nature and description of the acts of the official misconduct charged, it is insufficient to uphold the proceedings. In that case the defendant was charged with extortion and corruption in office, which are conclusions of law from facts, which may differ in different cases. The report of the grand jury, on which the present information is based, is as follows: "In the discharge of our duties as a grand jury we find, and do hereby report, that R. R. Savage, judge of probate in and for the county of Cherokee, ought to be...