50 So. 296 | Ala. | 1909
Lead Opinion
This is a proceeding for the impeachment of the defendant.
The facts are undisputed that on Thursday, the 21st of January, 1909, while Philip Fotch, who was a faithful and efficient deputy sheriff, was attempting to serve a warrant on a negro named Richard Robertson for a misdemeanor, said Robertson, without any excuse or justification, inflicted a mortal wound on said Fotch, from which he died that night; that it was a willful and deliberate murder, and excited a great indignation in the city of Mobile, and that on the night of Friday, the 22d of January, 1909, a party of masked men, estimated at from 10 to 20, entered the jail through the basement, and suddenly confronted two jailers (who were sitting in the guardroom, behind a steel-barred door) with drawn revolvers, and demanded of them to deliver the keys to the cells, which demand was complied with, and the intruders, leaving two armed men to stand guard over said two jailers, proceeded to the cell where said Robertson was confined, took him out, and, at a place not far from the jail, put him to death. It was in evidence that the jail is a modern structure, well arranged and guarded; that there are two steel-barred doors opposite each, with a space between, leading into the guardroom where the jailers were, but it had been customary to leave the outer door open, as it was on this occasion; also, that there were strong wooden doors protecting the street entrance to the jail building; and that there was also a strong door leading into the basement which was under the charge of the engineer.
Under the Constitution of 1875 it was provided that sheriffs might, be removed from office “for Willful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude while in office.” — Const. 1875, art. 7, §§ 1, 3. Our pres
A great many witnesses were examined on the part of the state and of the defendant, occupying the greater part of three days, and it would serve no useful purpose to discuss the same in detail. After a careful consideration of all the evidence, we are satisfied beyond a reasonable doubt that said Frank Oazalas, Sr., has been guilty of neglect Avithin the meaning of the Constitution which has resulted in the taking of a prisoner from jail and his being put to death.
In accordance with the demands of the law, an order will be here entered removing said Frank Oazalas, Sr., from the office of sheriff of Mobile county.
Dissenting Opinion
(dissenting).- — It is true that section 138 of the Constitution of 1901 in dealing with sheriffs and providing for their impeachment when prisoners are taken from their custody and killed or injured does not require the same degree of neglect of duty as a cause for impeachment as is required in other provisions relating to other officers and other causes; yet I do not think that the word “neglect” as used in said sec
We need not go elsewhere to get a definition of the word “neglect” as used in our Constitution, for this court in the case of White v. State, 123 Ala. 587, 26 South. 346, said: “We cannot doubt that the framers of the present Constitution used the words ‘neglect of duty’ in the sense and meaning which has been accorded to them by the courts, and, having been thus used, the Legislature cannot enlarge their scope and meaning.” “To neglect is to omit by carelessness or design.” —New York Guaranty Co. v. Gleason, 53 How. Prac. (N. Y.) 127. “Neglect means omission or forbearance to do a thing that can he done or that is required to be done.” — 16 Am. & Eng. Ency. Law, 385, and note 2. There must not only be a failure by carelessness or design to perform the duty required to he performed, but the party must have the capacity to perform the acts required of him, provided the incapacity is not superinduced by his fault or the result of his own misconduct. Here we have a clear definition of official neglect, as defined by our own court, and which must have been put in section 138 of the Constitution with the meaning and interpretation given it, inasmuch as there was no effort to define it otherwise by the instrument itself.
Conceding, however, that the respondent -heard Jas. H. Webb, was it any more than his mere opinion based solely upon what his client or Mrs. Hodgson told him? On the other hand, Judge Alford, equally as familiar with conditions as Mr. Webb, expressed a different opinion, and the respondent entertained similar views. Mr. Webb’s opinion was a mere conjecture, and
This is in the nature of a criminal prosecution, and I think the facts fully generate a reasonable doubt as to whether or not this man has been guilty of impeachable conduct. I think this doubt exists from the evidence, regardless of the proof of his good character ; hut when it is considered with the very weak evidence of the state, much of which has been procured through paid
The Constitution has singled out sheriffs, and holds them to a high degree of accountability for slighter mis
My Brothers, in their effort to charge respondent with neglect because of a failure to have certain outer wooden doors closed, cite section 132, Code 1907, which makes the sheriff the custodian of the courthouse and jail, and requires him to exclude intruders therefrom. While this is true, it must be borne in mind that his possession and control is subordinate to the orders and directions in a measure of the county commissioners or board of revenue. — White v. Hewlett, 143 Ala. 374, 42 South. 78. The basement door and the outer wooden doors ’were not openings to the jail alone, but to the building •of which the jail proper was but a part, and which included offices which had been assigned by the proper authorities to various and sundry officials. The closing of these doors, therefore, would not only tend to exclude intruders, but would have excluded these officials from •convenient ingress and egress to and from their respective places of business. Moreover, the sheriff had nothing to do with the basement door, as the basement had been put in the charge of the engineer by the board <of revenue.
I dissent from the conclusion of the majority, and think that this respondent should be discharged.