Trigg v. State
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 645 |
| Parties | BINGHAM TRIGG v. THE STATE OF TEXAS. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Travis. Tried below before the Hon. E. B. Turner.
This was a proceeding to remove B. Trigg from the office of county attorney of Travis county.
The pleadings and testimony will be sufficiently understood by the opinion, in connection with the briefs given.
The court charged the jury as follows:
“This proceeding was instituted by filing charges against the defendant, charging him with official misconduct and habitual drunkenness. There are other matters set up in the complaint, but the investigation has narrowed itself to two charges.
The provision of the Constitution under which this proceeding has been instituted is as follows: ‘County judges, county attorneys, and clerks of the District and County Courts may be removed by the judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth in writing, and the finding of its truth by a jury.’
As I have stated to you, your inquiry is confined to the two charges,--the one, habitual drunkenness; the other, official misconduct. The word habitual means the same in import as formed or acquired by habit, or customary, or usual, or common, by frequent practice or use. It means more than the word sometimes; nor does it imply reduced to actual imbecility.
Official misconduct means the same as wrong conduct, misbehavior, ill behavior, misdemeanor, misdeed, offense, delinquency, &c.; and it is for you to determine whether, under the evidence, it is true, as charged, that he has been guilty of official misconduct,--whether, when his duty called upon him to act in the interest of the State or county, he has used his position to prevent the due execution of the law, and willfully or corruptly to screen any person from a just prosecution for an offense.
If he has used his position to prevent persons guilty of violating the revenue or other laws from prosecution, whether through favoritism or any improper motive on his part, it would be official misconduct.
An officer may make mistakes and commit errors, and not be chargeable with official misconduct; but he must not use his position for sinister or corrupt motives. If he does, he is guilty of official misconduct.
Mr. Trigg is not on trial for crimes charged against him with a view to his prosecution and punishment therefor. It is true, that no man in this State can be prosecuted for an act made criminal without the act itself being defined by law and its punishment fixed. It does not, however, follow, as a necessary sequence, that official misconduct might not be shown, and an officer removed therefor, provided the evidence satisfied the jury that the charge was true in fact.
You will find upon the evidence by answering these questions: 1. Is it true that B. Trigg is an habitual drunkard? 2. Is it true that he is guilty of official misconduct, as charged against him?”
In behalf of the prosecution, the court further charged:
At instance of the defendant, the court further charged the jury: “If the jury believe, from the evidence, that the defendant sought to have William Tong released from the prosecutions against him before Justice Neill for the purpose of using said Tong as a witness on the part of the State against a number of parties accused of violating the gaming laws, that would be an act within the scope of his official discretion, and no cause for his removal from office.”
The jury returned their verdict, finding defendant guilty upon both issues, and further: “We, the jury, therefore find a general verdict for the State upon the questions submitted.”
Upon this verdict the court entered a judgment removing defendant from office. A motion for new trial was overruled, and defendant appealed.Hancock, West & North, for appellant.--The facts and nature of this case will be developed in connection with the discussion of the assignments of error, which present the following propositions:
1. The court erred in overruling appellant's motion to strike the alleged charges and amended charges from the files, and in not sustaining his exceptions thereto, and in permitting the jury to pass on them.
2. The court erred in its charge to the jury as to what constitutes drunkenness and official misconduct, as applied to the case at bar, and misled the jury by not sufficiently explaining to them the law applicable to this particular case.
3. The court erred in submitting special issues to the jury, and in entering a judgment of removal on the verdict returned into court.
I. This proceeding is supposed to be based on section 25 of article 5 of the present Constitution. It was instituted in the following manner: On April 18, 1877, the District Court of Travis county being then in session, (the term commenced April 16, 1877, and ended June 29, 1877,) an instrument styled in the record “a petition,” and in which the relators call themselves “petitioners,” was filed in court, without an order of the court, and without its authority. It purported to emanate from twenty-eight citizens, private individuals, residing in Travis county, moved so to do by the fact that they “are citizens deeply interested in the proper administration of the laws of the land,” and setting forth no other interest, and no special interest or right in the premises.
After alleging that appellant was the lawful choice of the people for county attorney, and his due election as such at a regular election held in February, 1876, this petition alleged that he duly qualified, and was then in the discharge and exercise of his official duties.
It is further alleged, that since his election appellant has been guilty of divers and sundry acts contrary to the laws and Constitution of the State, and of such a character as “in their opinion” required that he should be removed from his office, in order that the administration of the criminal laws might be properly carried on, and not fall into disgrace and contempt.
The relators then proceed to charge appellant with about seventeen crimes and misdemeanors, which are indicated in the opinion.
These charges are signed by counsel, but they are not sworn to. To the charges appellant objected, because the proceedings were unknown to the law, illegal, null and void.
Appellant's objections should have been sustained, for the following reasons:
1. Section 24 of article 5 of the Constitution, under which this proceeding is instituted, does not execute itself, and no steps can be taken under it until the Legislature shall have prescribed how, when, where, on what notice, & c., it shall be instituted and conducted.
2. Not only must the Legislature define the mode of procedure, but it must define the causes named, before the district judge can exercise the power with which he is clothed.
Incompetency, official misconduct, and habitual drunkenness must all have a specific meaning attached to them by the Legislature before the judge can exercise the power of removal; otherwise the meaning of these terms will vary with the views of every judge, and the probability is that no two of them will agree. The definition of official misconduct and habitual drunkenness furnished in the charge of the court in the present proceeding illustrates the matter.
3. If, however, it should be held that this constitutional provision is operative without legislative aid, then we insist that the charges presented in the petition are not sufficient, because they are not preferred under oath, and because the course of the common law has not been followed. (Gordon v. The State, 43 Tex., 330, and authorities cited; Bennett v. Ward, 3 Caine, 259; Cooley's Const. Lim., 2d ed., 58-60; Ex-parte King, 35 Tex., 65, 76, and cases cited; Honey v. Graham, 39 Tex., 1-6, and cases cited.)
4. If this constitutional provision is self-operative, and the charges can be maintained without being supported by the oaths of the relators, then we insist that the charges set forth in the case at bar are not the character of charges contemplated either by the Constitution or laws.
The drunkenness for which an officer is to be removed from his office, is different from that here charged, and the manner of procedure is fixed by the act of 31st January, 1876, p. 76. The acts set forth in that law are different from the offenses here charged.
The words “habitual drunkenness” and “habitual drunkard,” in the Constitution, are defined in the act of 18th August, 1876, p. 175, and this definition is different from the one adopted by the judge below in the trial of this cause; while the charges now under consideration are vague and insufficient under the law. (See act 17th August, 1876, p. 169, to punish drunkenness.)
II. We invite the attention of the court to the charge of the judge on the question of habitual drunkenness. It is erroneous, and doubtless misled the jury. It is also exceedingly obscure, and in fact envelops the whole case in Egyptian darkness.
III. The action of the District Court in submitting special issues to the jury is also erroneous. It is clear from the Constitution that the jury must find the truth of all the issues by a general verdict. If a verdict on special issues is sufficient, then the judge can submit only such issues to the jury as he chooses, and leave the general issue out of the case.
Again, this verdict is argumentative, and the facts do not justify it.
IV. The...
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