Ledbetter v. State

10 Ala. 241 | Ala. | 1846

GOLDTHWAITE, J.

1. The act of 1819 provides, that if any clerk of any court in this State, shall be guilty of certain acts of omission or commission therein enumerated, he shall be subject to a fine of $200, or removal from office. One of the sections prescribes that the charges shall be exhibited in writing, and the court shall direct the facts to be tried by a jury, and on conviction thereof such clerk shall be fined or removed from office as the court of which he is cleric shall think proper; provided, that every clerk against whom charges may be exhibited, shall be entitled to a copy thereof, and shall be permitted to make his defence on trial. [Dig. 146, § 14.] Under this act, we consider it clear the county court is invested with the power to remove its own clerk, whenever it is ascertained, in the manner directed by the statute, that he has been guilty of misbehavior in office.

2. In the form and manner of conviction, we are unable to perceive any substantial error. The charges are in writing, and in some, if not in all, of the specifications, neglect of duties is alledged, which by the act is declared ground for removal. It also appears the defendant • was served with a copy of the charges, and was allowed to make his defence at the trial. The jury have also, by their verdict,, ascertained the particular charges of which he is guilty. We think this is sufficiently precise and certain to warrant the court in proceeding to judgment, if no error was committed in putting the evidence to the jury.

3. But in this particular it seems the prosecution was allowed to give evidence of the defendant’s neglect of duty in sundry matters not particularly specified in the charges preferred ; also to prove the defendant’s general habits of intem-perancé, and his-general incompetency, by reason thereof, to prove the particular specifications.

We entertain no doubt that it is gross neglect of duty for a clerk to be intoxicated when discharging the functions of his office, and it would seem to be equally so to be habitually intemperate, as one of such habits, could not properly discharge the necessary duties ; but however this maybe, we think the charge in all cases should be sufficiently certain and explicit to indicate to the accused the precise of-fence with which he is charged, with the necessary specifications of time and place, when these are essential to designate the particular act. In the present case, the specifications of the offence are sufficiently certain, but the prosecution, instead of proving them, was allowed to go into matters not specified. We cannot undertake to say this has not prejudiced the defendant, although the verdict is a special one. The reason why irrelevant evidence is a ground for setting aside a judgment is, that it may have entered into the verdict, by causing a prejudice against the party.

For the error in this particular, we think the judgment must be reversed, and the cause remanded, ,