{ "id": 1364119, "name": "McClain v. Sorrels", "name_abbreviation": "McClain v. Sorrels", "decision_date": "1922-03-06", "docket_number": "", "first_page": "321", "last_page": "326", "citations": [ { "type": "official", "cite": "152 Ark. 321" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "133 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575119 ], "opinion_index": 0, "case_paths": [ "/ark/133/0357-01" ] }, { "cite": "47 Ark. 243", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888689 ], "opinion_index": 0, "case_paths": [ "/ark/47/0243-01" ] }, { "cite": "128 Ark. 183", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581951 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/128/0183-01" ] } ], "analysis": { "cardinality": 359, "char_count": 8948, "ocr_confidence": 0.486, "pagerank": { "raw": 1.374634375000587e-07, "percentile": 0.6392214372343715 }, "sha256": "195eb08ae57c81de002494e44434e319ad5355d424d3c1a38a6dda80a203ff92", "simhash": "1:cfe7f747e64a94d4", "word_count": 1458 }, "last_updated": "2023-07-14T18:09:00.627662+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McClain v. Sorrels." ], "opinions": [ { "text": "McCulloch, C. J.\nThe petitioner, John G-. McClain, is the sheriff of Lincoln County, and has filed a petition here for a writ of prohibition to restrain the circuit court of that county from summarily entering a judgment removing him from office.\nThe petitioner was indicted by the grand jury of Lincoln County at the September, 1921, term of the circuit court for the statutory offense of being intoxicated on a public highway. He was tried and convicted at that term of court, and a judgment was rendered imposing a fine of $25 in accordance with the verdict of the jury. He appealed to this court, and the judgment of the circuit court was affirmed. McClain v. State, 151. Ark. 266.\nUpon the convening of the circuit court of Lincoln County for the February term, 1922, the prosecuting attorney of the circuit filed a petition setting forth the indictment and conviction of petitioner, as above recited, and moved the court for an additional judgment in that proceeding removing the petitioner from the office of sheriff. Petitioner appeared and made objection to the court proceeding in the matter, and, upon his objections being overruled, he filed his petition here for prohibition.\nIf the court is without jurisdiction to enter an order of removal from office at this time in the criminal proceeding' against petitioner, as sought by the prosecuting attorney, then the appropriate remedy is prohibition against the court to restrain further proceedings. Speer v. Wood, 128 Ark. 183.\nJustification is sought for the attempted exercise of jurisdiction under the statute, which reads as follows:\n\u201cWhenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant. Act March 9, 1877, p. 64, \u00a7 1.\u201d Crawford & Moses\u2019 Digest, \u00a7 10335.\n\u201cUpon conviction of any such officer for any such offenses, a part of the sentence of the circuit court having jurisdiction shall be to remove such officer from office, and the clerk of the court, at the close of the term, shall transmit to the Governor a certified transcript of the presentment or indictment, with the judgment of the court thereon, and the vacancy shall be filled as may be prescribed by law at the time the same occurs.\u201d Id. \u00a7 10336.\nThe contention of petitioner is that the statute quoted above does not authorize removal from office as a part of the judgment of conviction of a criminal offense, unless the charge in the indictment necessarily includes the charge of the commission of one of the grounds for removal stated in the statute, and that the charge in the in-dictment against petioner, being merely a statutory one for being drunk on a public highway, does not involve any of the grounds of removal set forth in the statute.\nIt is also contended by counsel for petitioner that, even if the statute authorizes removal as a part of the judgment of conviction, such a judgment cannot be entered after the lapse of the term at which the judgment of conviction was entered.\n\"We are of the opinion that the first contention of counsel is correct, and that the court has no power to render a judgment of removal from office upon the indictment against petitioner. There is a provision of the Constitution on this subject, which reads as follows:\n\u201cThe circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office.\u201d Art. VII, \u00a7 27, Constitution of 1874.\nThis court, in the case of Haskins v. State, 47 Ark. 243, construed the above quoted provision of the Constitution to mean that \u201cwhen an alleged cause of removal from office is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State\u2019s attorney may proceed upon his own motion, by information filed under oath; but if it is for an indictable offense, the proceeding must be by indictment.\u201d It results from this interpretation of the Constitution that, in case the removal is to be accomplished under an indictment for an offense involving one of the grounds for removal stated in the Constitution, the offense set forth in the indictment must he one which necessarily includes the grounds for removal, otherwise the removal would be accomplished without giving the accused the benefit of a trial upon the issue as to the existence of the grounds for removal.\nIn the Haskins case, supra, the charge against the sheriff was for permitting prisoners to go at large, which necessarily constituted official misconduct, and the court held that the charge must be brought by the grand jury, and not by information filed by the prosecuting attorney. The converse of that rule is equally true, and if the charge does not involve one of the grounds of removal stated, then the removal must be sought on information containing the accusation of facts that constitute grounds for removal.\nIn the present instance the petitioner was charged with the statutory offense of drunkenness on a public highway, and the inquiry under that indictment was confined to the single fact charged, which did not necessarily involve any of the grounds for removal stated in the Constitution. It did not relate to any official misconduct, nor did it necessarily include the charge of either \u201cincompetency, corruption, gross immorality\u201d mentioned in the statute. A single act of drunkenness on a public highway does not necessarily,, regardless of circumstances, involve moral turpitude so as to constitute gross immorality within the meaning of the Constitution and statute. It would be a question of fact for court or jury under the given circumstances of a case.\nIn the case of Winfrey v. State, 133 Ark. 357, we held that an indictment against an officer for transporting liquor did not fall within the statute authorizing a summary judgment of removal. Of course, this does not preclude the institution of proceedings by information charging, as grounds for removal, gross immorality, but the accused is entitled to a hearing on that charge, so that there may be a determination of the question whether or not his conduct amounted to gross immorality or incompetency within the meaning of the statute, but in the proceedings under the indictment the court had no jurisdiction under the charge to enter a summary judgment.\nHaving reached this conclusion, it is unnecessary to determine whether the court could, under an indictment authorizing removal, enter such an order after the lapse of the term at which the judgment of conviction was entered.\n\u2022 The writ of prohibition is therefore awarded in accordance with the prayer of the petition.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "W. F. Kirby and R. W. Wilson, for petitioner.", "Respondent pro se." ], "corrections": "", "head_matter": "McClain v. Sorrels.\nOpinion delivered March 6, 1922.\n1. Prohibition \u2014 when remedy lies. \u2014 Where the circuit court is without jurisdiction to remove a court officer upon information filed by the prosecuting attorney, the appropriate remedy is prohibition against the court to restrain further proceedings.\n2. Officers \u2014 jurisdiction to remove. \u2014 Under Const. 1874, art. 7, \u00a7 27, providing that \u201cthe circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office,\u201d held that a proceeding to remove a county officer for an indictable offense must be by indictment, and the offense set forth in the indictment must be one which necessarily includes the grounds for removal, since otherwise the removal could be accomplished without giving the accused the benefit of a trial upon the issue as to the grbunds for removal.\n3. Officers \u2014 removal\u2014gross immorality. \u2014 An indictment and conviction of a county officer for the statutory offense of being drunk on a public highway does not, regardless of circumstances, involve moral turpitude so as to constitute \u201cgross immorality,\u201d within the meaning of the Const. 1874, art. 7, \u00a7 27, and Crawford & Moses' Dig., \u00a7 \u00a7 10335-6, authorizing the removal of county and township officers for \u201cgross immorality.\u201d\n4. Officers \u2014 removal\u2014information.\u2014An information will lie against a county officer to remove him for gross immorality, but the accused is entitled to a hearing upon that charge.\nProhibition to Lincoln Circuit Court; W. B. Sofre\u00eds, Judge;\nwrit awarded.\nW. F. Kirby and R. W. Wilson, for petitioner.\nRespondent pro se." }, "file_name": "0321-01", "first_page_order": 345, "last_page_order": 350 }