State v. Yager

• Decision Date: 20 May 1913
• Citation: 157 S.W. 557
• Parties: STATE v. YAGER.
• Court: Missouri Supreme Court

157 S.W. 557

STATE v. YAGER.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. VENUE (§ 67) — CHANGE — FORM OF AFFIDAVIT.

An affidavit for a change of venue asked for a change because the inhabitants of the county of the venue and the trial judge were prejudiced against applicant, and recited that the information of the existence of such causes first came to defendant at the time stated, and that he had given reasonable notice to plaintiff's attorney and could not have a fair and impartial trial on account of such causes. Held, that the application was sufficient under Rev. St. 1909, § 1927, providing that a change of venue may be awarded in any civil suit on the ground that the judge is prejudiced or that the inhabitants of the county are prejudiced against applicant.

2. VENUE (§ 68) — CHANGE — EVIDENCE OF PREJUDICE.

Under Rev. St. 1909, § 1931, providing that if the adverse party files a counter affidavit to an affidavit for a change of venue because of prejudice of the inhabitants of the county, controverting the objections to such inhabitants, the court shall hear evidence on the issue, no proof of prejudice by the applicant is necessary to entitle him to a change of venue where such counter affidavit is not filed.

3. VENUE (§ 36) — CHANGE — "CIVIL ACTION" — "CIVIL SUIT."

Rev. St. 1909, § 10209, relating to proceedings to remove delinquent public officers,

provides that all actions and proceedings under the article shall be in the nature of civil actions and tried as such. Section 1927 provides that a change of venue may be awarded in any "civil suit" to any court of record for the causes stated. Held, that a change of venue could be granted in a proceeding to remove a sheriff from office; the term "civil action" being equivalent to "civil suit."

4. SHERIFFS AND CONSTABLES (§ 6) — REMOVAL — GROUNDS — NONPERFORMANCE OF DUTY.

The act of a sheriff in absenting himself from the performance of his duties is not excused by the fact that his duties were performed in his absence by his deputies as well as or better than he would have performed them; Const. art. 2, § 18, requiring officers to devote their time personally to their official duties.

5. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

A requested charge, in proceedings to remove a sheriff from office for absenting himself from the performance of his duties, that if no official duty was neglected during his absence the jury could not find against him because of it was properly refused where the evidence showed that the sheriff's absence was for the purpose of avoiding arrest for assault and battery.

6. SHERIFFS AND CONSTABLES (§ 6) — REMOVAL PROCEEDINGS — ADMISSION OF EVIDENCE.

In a proceeding by the state to remove a sheriff from office for neglect of his duties, an information filed by the prosecuting attorney against the sheriff, charging him with assault and battery, was not admissible in evidence; it not appearing that defendant was convicted thereunder.

7. SHERIFFS AND CONSTABLES (§ 6) — REMOVAL — NONPERFORMANCE OF DUTY — DEFENSES.

The fact that misconduct by a sheriff in failing to perform his official duties was due to his own weakness and moral delinquencies was not a defense, under the statute, to removal proceedings.

Appeal from Circuit Court, Pike County; B. H. Dyer, Judge.

Proceeding by the State of Missouri against Theodore H. Yager to remove defendant as sheriff. From a judgment of removal, defendant appeals. Reversed and remanded.

This is a proceeding brought by the prosecuting attorney of Pike county against the defendant, as sheriff of said county, to remove the defendant from office pursuant to the provisions of sections 10204 and 10205, R. S. Mo. 1909. Upon a trial had before a jury, defendant was found guilty as charged, and judgment of ouster from office was duly entered by the circuit court of Pike county. From this judgment defendant appeals.

This case was set down for trial at the July term, 1912, of the circuit court of Pike county, at which time defendant appeared and filed his answer admitting that he was the duly elected, commissioned, qualified, and acting sheriff of Pike county, and had been such since the 1st day of January, 1909; answering further he denied all other facts contained in the complaint. The case was not tried at the regular term, but for some reason, not material here, it was passed to an adjourned term of said circuit court, which adjourned term began some time in the month of September, 1912. The trial of defendant was had on the 9th day of September, 1912. On the 5th day of September, 1912, defendant filed his application for a change of venue in this cause, which application was duly verified, and, caption omitted, is as follows: "Now comes Theodore H. Yager, defendant in the above-entitled cause, and asks the court to award a change of venue in said cause for the following reasons to wit: First. Because the inhabitants of Pike county, Mo., are prejudiced against this applicant, the defendant in this cause. Second. Because the judge of this court, the Honorable B. H. Dyer, is prejudiced. Defendant says that information and knowledge of the existence of the above-mentioned causes for a change of venue first came to him after the adjournment of this court at its July term, 1912, and between the date of the last adjournment of said July term, of this court, and September 9, 1912. Defendant further states that he has given reasonable notice to the attorney of record for the plaintiff in this cause; and he further states that he cannot have a fair and impartial trial of said cause in this forum on account of the causes herein alleged. T. H. Yager." This application for a change of venue was overruled by the court upon the theory that "this is not a civil proceeding, within the meaning of the change of venue law, and that defendant is not entitled to a change of venue under the act under which this proceeding is brought." To the action of the court in overruling his application for a change of venue, defendant duly saved his exceptions. No point being made as to extraneous matters not appearing in the application itself and in the reasons given for overruling the same, it is unnecessary to refer to them here further than to say that all other matters entitling defendant to a change of venue appear from the record; and, if he was not so entitled, the reasons therefor appear from applying the law to what is above set out.

The complaint on which defendant was prosecuted, after charging his election as sheriff and his qualification as such, which defendant duly admitted by answer, proceeded to charge official derelictions against him as follows: "Complainant charges that the said Theodore H. Yager, as sheriff of said county, has been guilty of misconduct in office and should be removed therefrom for reasons hereinafter set forth, viz.: That the said Theodore H. Yager, as sheriff of said county, has been guilty of willful violations of his official duties in said office of sheriff in this, to wit: That on or about the 3d day of April, 1911, there was confined in the jail of Pike county a prisoner by the name of Jesse Shuck, who had been sentenced by the circuit court of said county on the 27th day of February, 1911, to serve a sentence of 60 days' imprisonment in said jail for carrying concealed weapons, and who on said 27th day of February, 1911, was committed to said jail to serve said sentence; that on or about the 3d day of April, 1911, and before the term of imprisonment of said prisoner had expired, the defendant at night took the said Jesse Shuck out of said jail and drove with him to the city of Louisiana, Mo., and then and there in said city did permit the said Jesse Shuck to drink intoxicating liquors, whereby he (the said Jesse Shuck) became drunk from the effects thereof and was locked up in the jail of said city, at which time the defendant was drunk from the effects of and under the influence of intoxicating liquors, at which time the defendant took with him the keys to said jail, which made it impossible to admit any prisoner that may have been committed to said jail or to look after the wants of prisoners who were then and there confined in said jail, and it became necessary for W. P. Burke, the deputy sheriff, to go to the city of Louisiana to get the keys to said jail from the defendant. That as sheriff of said county it was the duty of the defendant to preserve the peace of the citizens of said county and to protect its citizens from harm, and that the defendant did in Cuivre township, in Pike county, Mo., on the 9th day of June, 1911, disturb the peace of one Blanch Chilton, and did also on said date in said township, county, and state strike, beat, and wound his wife, Lizzie Yager. That on the 10th day of June, 1911, two informations were filed by the prosecuting attorney of said county before E. G. Omohundro, a justice of the peace within and for Cuivre township, in said county and state, one of which said informations charged the defendant with disturbing the peace of the said Blanch Chilton on said date, and the other information charged the defendant with striking, beating, and wounding his said wife, Lizzie Yager, on said date, and that the defendant on the 12th day of June, 1911, did plead guilty before the said justice of the peace to the said offenses charged in said information, which said acts on the part of the defendant were unlawfully and willfully done and constituted willful violations of his official duties as sheriff of said county. Complainant further charges that the said Theodore H. Yager, as sheriff of said county, has been guilty of willful neglect of his official duties in said office of sheriff and has also failed personally to devote his time to the performance of the duties of said office of sheriff in this, to wit: That the defendant did in said county and state on the 12th day of June, 1911, strike, beat, and wound his...