State v. Wade
| Decision Date | 01 April 1898 |
| Citation | 40 A. 104,87 Md. 529 |
| Parties | STATE, to Use of COCKING et al., v. WADE, Sheriff, et al. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Charles county.
Suit by the state, for the use of Annie L. Cocking and others against George A. Wade, as sheriff of Charles county, and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.
Argued before MCSHERRY, C.J., and RUSSUM, FOWLER, PAGE, BOYD, and PEARCE, JJ.
John Grason, H. B. Stimpson, and Rand. Barton, Jr., for appellants. Adrian Posey, Sydney E. Mudd, and L. A. Wilmer for appellees.
This is a suit on the bond of George A. Wade, sheriff of Charles county, to recover damages for his alleged neglect in the performance of his duty, whereby the father of the equitable plaintiffs lost his life. After setting out the bond, it is alleged in the narr. that Joseph Cocking, on the 21st May 1896, was indicted by the grand jury of Charles county for the crime of murdering his wife, Fannie Cocking, and her sister, though he was "innocent" of the same; that thereupon he was delivered to the custody of said sheriff, to safely keep until discharged in due course of law; that owing to intense excitement throughout Charles county, and to the great danger to the said prisoner from mob violence, the said Cocking had been "removed" to the jail in Baltimore city, but, on the same day on which the indictment was found the said sheriff again "removed" him to an old dilapidated building, used as the jail of Charles county, at Port Tobacco, which said building was afterwards superseded as a jail of the said county by a strong new building, in the town of La Plata, the said new jail being delivered, ready for use, to the said sheriff, on or about the 15th day of June, 1896; that on the 22d May, a change of venue was granted to St. Mary's county, and this caused increased excitement to prevail throughout Charles county; that the said sheriff had full knowledge thereof, yet he refused to remove the prisoner to the jail in Baltimore city, though he was requested repeatedly so to do by the said prisoner and his counsel, or to the new jail at La Plata; that not only did the said sheriff so refuse, but also, in spite of warnings by the prisoner and his counsel, the guards to the said building at Port Tobacco were removed, and the keys of the said building were placed in the custody and keeping of "an aged and infirm negro," who did not reside in the premises, and "the said building and the said prisoner were left wholly unprotected," and at the mercy of evilly disposed persons; that on the 26th day of June, in the nighttime, the jail was attacked by an unknown "body of men," and the said negro, upon the request of said men, "opened the doors of said building, and delivered the said Cocking to the said unknown body of men," who took him from thence, and in the most atrocious, brutal, and unlawful manner "conveyed him to a point near by, and there, in the presence of the said sheriff, who had been warned by the negro, and who did not offer the slightest resistance to the said unknown body of men in their unlawful purpose, hanged the said prisoner by the neck until he was dead"; so that the plaintiffs say "that by reason of said gross negligence of the said Sheriff Wade in the custody of said prisoner, and his failure in his duty to safely and properly keep said prisoner as aforesaid, the violent and premature death of said prisoner was occasioned as aforesaid, and that the equitable plaintiffs, children of said prisoner, as aforesaid, have thereby been deprived of the support and maintenance of their father, the said prisoner." The appellees demurred, the court sustained the demurrer, and the appellants appealed; so that the sufficiency, or not, of this narr., is the only question before us.
It may be proper to observe that, in a case like this, whatever right of action belongs to the children of the deceased, Cocking, must be such only as they may have under the provisions of article 67 of the Code; and, to entitle them to sue under that article, the death must be caused "by wrongful act, neglect, or default," such as would have entitled the party injured to maintain an action and recover damages if death had not ensued. It follows from this that the matter first to be determined is whether Cocking himself (had not his death ensued) would have had a right of action, under all the circumstances, to recover damages for the injuries he received at the hands of the mob. There is no averment in the narr. that the sheriff has acted with malice or with evil purpose towards the prisoner, or that he has personally assaulted or otherwise maltreated him; but it is contended, with force and ability, that he should be held civilly liable for the acts of the lawless mob, whereby the prisoner lost his life, because, with knowledge of the existence of public excitement about the matter, he failed to remove the prisoner from the jail at Port Tobacco to the jail in Baltimore or the new building at La Plata, and, having allowed him so to remain at Port Tobacco, he removed the guards who had been stationed there to protect the prisoner, and committed the keys to an "old and infirm negro."
From a very early day the English law has contained provisions defining and regulating the rights and obligations of sheriffs in respect to the custody of persons charged with the commission of crime. As far back as the statute of 14 Edw. III. c. 10, the right to the custody of the jails was "rejoined" to the sheriffs of the bailiwicks; and by 5 Hen. IV. it was ordained that none be imprisoned by any justice of the peace "but in the common gaol." In our own state, by statute passed in 1809, and now codified as section 16 of article 42 of the Code of Public General Laws "no citizen committed to the custody of an officer for a criminal matter shall be removed from thence into the custody of another officer unless by habeas corpus or other legal writ, except when the prisoner is delivered to a constable or other inferior officer to be carried to some jail, or shall be removed from one place to another, *** in order to his discharge or trial, or in case of sudden fire or infection, or other necessity, or," etc. Mr. Alexander, in his valuable work on the British statutes, remarks of this section that it is "intended to prevent the vexation and danger of protracted imprisonment which might be occasioned by the removal of the prisoner from one custody to another; and it affirms, therefore, the principle that the prisoner ought to be committed to the proper prison in the first instance." This observation is supported by a fair interpretation of sections 43, 44, and 45 of article 87 of the Code of Public General Laws. The first of these sections provides that the sheriff shall "safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law"; and the place where he shall so keep them is clearly indicated by the forty-fifth section. That section provides that all persons committed under the authority of the United States the sheriff shall receive and safely keep in jail, "in the same manner and under like penalties as if such persons were committed under the authority of this state."
Now the jail at Port Tobacco was the common jail of the county, though provision had been made for another at La Plata; but this one was not in use, though it was finished about the 15th day of June. The jail building at Port Tobacco was the place designated by the law for the detention of prisoners, and was the proper place for the detention of Cocking. As a public jail, it was under the supervision of the public authorities. By section 22 of article 51 of the Code of Public General Laws, it was the duty of the grand jury to visit it, and inquire into its condition, the manner it was kept, and the treatment of the prisoners. If it were in any of these respects that the sheriff had failed in his duty, he was liable to be proceeded against criminally. His duty to keep safe the...
To continue reading
Request your trial