97 P. 903 | Cal. Ct. App. | 1908
This is an appeal from a judgment removing defendant from the office of constable of Princeton township in Colusa county.
The proceedings were taken under section 772 of the Penal Code providing for the "removal of public officers by summary proceedings," and were based upon a written accusation signed and verified by plaintiff charging defendant with refusal and neglect to perform the official duties pertaining to his office, in that "On the 27th day of March, 1907, at and in the town of Princeton in Colusa County, State of California, and in said township, a large number of persons on the *752 streets of said town, did then and there willfully and unlawfully disturb the peace of said neighborhood and of said plaintiff by threatening, traducing, quarreling and fighting with one another; and did then and there use vulgar, profane and indecent language that was heard by all passers-by on said streets; that said defendant was present and a witness to all and each of said acts . . . and did willfully, knowingly and unlawfully refuse and neglect to preserve the peace, or to make any effort to prevent the same; that said defendant had full power, authority and ability to do and perform all and each of the thing herein alleged to have been refused and neglected to be done by him."
Appellant contends: 1. That the written accusation does not state facts sufficient to constitute a cause of action; 2. The judgment is not justified by the findings of fact; and 3. The findings of fact are not justified by the evidence.
The first two grounds may be considered together, as it is admitted that the findings follow the averments of the accusation; hence if the objections to the latter be not well founded, it must be conceded that the findings support the judgment.
The contention is made that the duties of the constable are defined by statute, and that the facts alleged in the accusation fall short of bringing the case within the scope and purview of said statutory definition. The particular objection made by appellant is that it does not appear that an offense was being committed by anyone at the time and place alleged in the accusation. Therefore, it is insisted, no duty was cast upon the constable to take any affirmative action.
If we are to look to the statute for a specific justification of the charge, it will be found in subdivisions 1, 2 or 3 of section 4176 of the Political Code. By section 4315 of the same code these subdivisions are made applicable to a constable and they provide that he must: "1. Preserve the peace; 2. Arrest and take before the nearest magistrate for examination all persons who attempt to commit or who have committed a public offense; 3. Prevent and suppress all affrays, breaches of the peace, riots and insurrections which may come to his knowledge."
From the averments of the accusation it appears clear enough that certain persons were perpetrating a breach of the peace and that the constable was present; therefore, it was plainly his duty to prevent or suppress the disturbance. *753 His inaction under the circumstances alleged amounted to a willful neglect of duty and rendered him liable to removal from office if effect is to be given to said section 772 of the Penal Code.
However, it is argued by appellant that the facts charged do not amount to a disturbance of the peace, for the reason that a material element of the offense as defined in section
We may admit that the accusation is somewhat uncertain in the respects indicated by appellant, but conceding for the purpose of the argument that the requirements for an indictment or information are applicable to an "accusation," we find a ready answer in the suggestion that no objection whatever to its sufficiency was made in the court below, and it is clear that the facts alleged and the corresponding findings, if defectively stated, furnish ample support for the judgment.
In considering the sufficiency of the evidence, there is no reason for any departure from the general rule that the testimony must be taken most strongly against the appellant, and if we can see any substantial support for the findings, we can go no further. The record shows that several witnesses for the plaintiff testified to facts tending to support the material averments of the accusation. For instance, one said that there were from twenty to forty men close together on the street. The men were wrangling, quarreling, cursing and swearing. These men were engaged in that sort of thing for at least fifteen or twenty minutes, when a fight took place. "Defendant was near where the men were all of the time, and I did not see him do anything to stop the noise or fight, until it was all over. After it was all over he took hold of one of them and told him to quit. He did not make any arrest. After the trouble was over the defendant said: 'Hell, if they want to fight let them fight it out.' " We must accept the testimony as credible and hold that it justified the findings.
Another question of vital importance, not suggested by counsel but involved in the record, relates to the finality of the judgment. It is not clear that the supreme or this court has jurisdiction to entertain the appeal.
In the Matter of Curtis,
In Wheeler v. Donnell,
The district court of appeal is given jurisdiction "in questions of law alone, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered." (Cal. Const., art. 6, sec. 4.)
As this is a criminal proceeding not prosecuted by indictment or information, unless we are prepared to hold that the legislature can enlarge the appellate jurisdiction of the courts beyond what the constitution provides, the conclusion would seem to follow that the appeal should be dismissed.
But the judgment, for reasons stated, should be upheld, and as the question of jurisdiction has not been discussed by counsel, we do not decide it.
The judgment is affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 5, 1908. *756