State v. Scarth

• Decision Date: 22 September 1931
• Docket Number: Case Number: 20413
• Parties: STATE v. SCARTH.
• Court: Oklahoma Supreme Court

1931 OK 561

3 P.2d 446

151 Okla. 178

STATE v. SCARTH.

Case Number: 20413

Supreme Court of Oklahoma

Decided: September 22, 1931

Syllabus

¶0 1. Counties--Action to Remove County Commissioners, as "Special Proceeding."

"An action to remove county commissioners on an accusation of a grand jury is a special proceeding." Myers v. State, 137 Okla. 272, 278 P. 1106.

2. Officers -- Action for Removal Civil in Nature.

An action to remove an official under a grand jury accusation is in its nature a civil and not a criminal action.

3. Same--Civil Procedure Applicable.

An action to remove an official under a grand jury accusation under sections 2394-2405, inclusive, is a special proceeding, providing its own due process; being a civil action, where its own provisions do not adequately provide the procedure, civil procedure will be invoked.

4. Same--Statutes on Removal of Officers Liberally Construed.

The intent and purpose of the statute for removal of officers was to provide a speedy and adequate remedy for the people to remove corrupt and unfaithful officials, and said section will be construed in conformity with said legislative intent.

5. Same--Appeal--Demurrer to Accusation of Grand Jury Erroneously Sustained.

Where a demurrer is sustained to an accusation of the grand jury on the theory that such accusation is a criminal proceeding, and the same strictness of construction is required as in construing indictments, said decision is erroneous, and will be reversed on appeal.

Appeal from District Court, Caddo County; Will Linn, Judge.

Proceeding by the State to remove J. H. Scarth County Commissioner, from office. Demurrer to accusative sustained, and the State appeals. Reversed and remanded, with directions

Ted Morgan, Co. Atty. (A. J. Morris, of counsel), for plaintiff in error.

Pruett & Wamsley, for defendant in error.

CULLISON, J.

¶1 This is a proceeding to remove J. H. Scarth, defendant, from office under a grand jury accusation. Defendant's demurrer to the accusation was sustained by the court, and the state appealed. Defendant was a member of the board of county commissioners of Caddo county, Okla., and as such county commissioner, the grand jury of Caddo county, Okla., on September 22, 1928, returned an accusation against defendant seeking his removal from office.

¶2 Defendant was given the statutory notice, and filed his answer objecting to the legal sufficiency of the accusation and denying the truth of the same. Said objections in the answer were heard by the court and overruled, from which order no appeal was taken, leaving that part of the answer stand which denied the truth of the allegations contained in the accusation and each and every count and article thereof.

¶3 Thereafter, on February 4, 1929, the journal entry in the record recites that defendant secured permission to withdraw his answer for the purpose of filing a general and special demurrer to the accusation of the grand jury.

¶4 The journal entry further recites that said demurrer was duly considered by the court and sustained, for the same reasons and upon the same grounds as stated by the court in sustaining the demurrer of the defendant to the accusations in the case of State v. W. E. Smith, 151 Okla. 183, 3 P.2d 178, in which case the demurrer was sustained on the theory and for the reason that an accusation by the grand jury for the removal of an officer was a criminal proceeding and should be construed in accordance with the procedure in indictments for criminal offenses. The court also ordered the accusation dismissed without prejudice. From this ruling of the court the plaintiff appeals.

¶5 Plaintiff presents two propositions of law to substantiate its contention that the court erred in sustaining the demurrer (brief, page 13). First proposition of law: The district court is without jurisdiction, at a subsequent term, to vacate or modify its judgments or orders unless there is a substantial compliance with the statute. Second proposition of law: A proceeding to remove an officer from office is a special proceeding of a civil nature, and the same strictness of pleading is not required as in criminal actions.

¶6 In the consideration of the above propositions of law, we consider that a decision of the second proposition adequately covers this case and that it is unnecessary to discuss and decide the first proposition by plaintiff.

¶7 This proceeding was instituted under sections 2394-2405, inclusive, Compiled Oklahoma Statutes 1921. Section 2394 provides the causes for removal from office, among which are habitual or willful neglect of duty and willful maladministration. Section 2395 provides that the grand jury shall present an accusation in writing charging such officer with any of the causes of removal mentioned in the preceding section. Section 2396 provides the accusation must state the offenses charged in ordinary and concise language without repetition and in such manner as to enable a person to easily comprehend the same. Section 2397 provides that the prosecuting officer must cause a copy of the accusation to be served upon the defendant and written notice of not less than 5 days that he appear before the district court and answer the accusation. Section 2398 provides that the defendant must appear at the time appointed in the notice and answer the accusation, and if he does not appear, the court may proceed to hear and determine the accusation in his absence. Section 2399 provides that the defendant may answer the accusation either by objecting to the sufficiency thereof, or of any article therein, or by denying the truth of the same. (Showing that the Legislature intended that more than one ground for removal could be contained in the accusation.) Section 2400 provides:

"If he objects to the legal sufficiency of the accusation, the objection must be in writing, but need not be in any specific form, it being sufficient if it presents intelligently the grounds of the objections."

¶8 California has the same procedure for removal of officers as outlined above. The California Code was enacted February 14, 1872, and the court, in passing upon the statutes in question in the case of In re Burleigh, 78 P. 242, held:

"That an accusation of a public officer for offenses in office, brought merely for the purpose of removing him from office, was not an indictment, and hence was not objectionable on the ground that it contained more than one offense."

And in the body of the opinion, the court discussed the matter in detail as follows:

"A written accusation under sections 758 et seq. of the Penal Code was made by a grand jury, charging the respondent, Burleigh, with misconduct in his office of supervisor. He filed what, we suppose, may be called a demurrer; that is, a written document containing objections 'to the legal sufficiency of the accusation' as provided in sections 762 and 763. The demurrer was based on several grounds, and, among others, that the accusation did not substantially conform to the provisions of the Penal Code, or sections 950, 951, or 952 thereof, and that more than one offense was charged. The court below sustained the demurrer, stating in its order that it was sustained for the reason that more than one offense was charged therein. The people appeal from the judgment.

"The appellants concede that, if the accusation is to be treated as an indictment, then the demurrer was properly sustained. They contend, however, that an accusation under section 758 is not an indictment. They also concede that, if that be so, then the people have no appeal, and this appeal would have to be dismissed. Notwithstanding this peculiar position occupied by appellants, still, in order to reach the proper judgment to be rendered on this appeal * * * it seems necessary to determine whether or not the accusation under section 758 is, in law, an indictment, and the trial under it subject to the rules which apply to the trial of an indictment; and, in our opinion, such accusation is not an indictment, and is not to be treated as such.

"The main argument of respondent is that an accusation comes strictly within the definition of an indictment, which is defined in section 917 as follows: 'An indictment is an accusation in writing presented by the grand jury to a competent court, charging a person with a public offense.' But an accusation under section 758 is not an accusation 'presented by a grand jury to a competent court'; it 'must be delivered by the foreman of the grand jury to the district attorney.' When an indictment is found by a grand jury, it 'must be presented by their foreman in their presence to the court' (section 944), and must have certain indorsements; and the defendant may, on motion have the indictment set aside 'where it is not found, indorsed, and presented as prescribed in this Code.' Section 995. The proceedings on an indictment, and the consequences following a judgment thereon, are entirely different from those accompanying the trial on an accusation under section 758. A warrant of arrest follows an indictment, under which the defendant is immediately imprisoned unless he gives bail. Nothing of the kind occurs on an accusation; the party accused is merely served by the district attorney with a copy of the accusation, and notified to appear within a certain time and answer it, and may appear or not as he chooses, in a civil action. In an indictment, only one public offense can be charged; its main purpose is to punish the defendant for the commission of a crime, and an acquittal or conviction is a bar to a future prosecution for the offense charged. The main purpose of the accusation under section 758 is to remove a person from public office for misconduct in such office; the misconduct charged need not necessarily include an act which would itself constitute a crime, and, if it does include such crime, the judgment on the accusation would not be a bar to a subsequent prosecution for such crime. The judgment can go only

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