Commonwealth v. Chinn

Opinion of the court by JUDGE BURNAM Acquitting the defendant. This is a proceeding- to remove tbe defendant, Claude Chinn, from the office of clerk of the Fayette County Court. The application is made to this court under section 124 of the Constitution, and in conformity with the provisions of sections 442-450, inclusive, of the Criminal Code. Section 442 of the- Criminal Code provides: “'That clerks of the court of appeals, and clerks of circuit, county, and police and city courts, may be removed from office by the court of appeals, upon a written information signed and presented in said court by the attorney general, charging ihe following causes of removal: (1) Any act, omission, or neglect by such clerk, for which the statutes have prescribed a forfeiture of office. (2) Any malfeasance in office or neglect of official duty that the court may consider sufficient cause of removal.” By the constitutional provision above referred to, this court is made, in this peculiar class of cases, the judges of the facts as well as the law, and two-thirds of the members must concur in the sentence. — 530 — Tlie attorney general .filed a -written statement of the charges upon which he relies for the removal of the defendant from office, on the lf>th of October, 1900. They are, viz.: “(1) That the defendant during his present term of office did, for a valuable consideration, farm out, sell, and transfer to the Fidelity & Deposit Company of the State of Maryland his office as clerk of the Fayette County Court, with all of its emoluments, profits, etc., and has surrendered to said company and its authorized agents the custody, possession, and control of said office, including its records, books, and papers, and the said company is now conducting said office as if it were the clerk of the Fayette County Court. (2) It is charged that the said Chinn, on the 4th day of June, 1900, made his report of taxes and moneys, collected in conformity with the statute, that said report was produced in the Fayette Circuit Court by the defendant, Chinn, and approved by the circuit judge, Watts Parker, and its correctness and truth sworn to by 'the said Chinn before the clerk of the Fayette Circuit Court;'that in said report it is stated by said Chinn that he had collected $8,539.75, and had remitted to the. auditor of public accounts $5,368.81, when in truth and in fact he had made no remittance, but retained the money in his own pocket; that said report was false, and so known to the defendant, Chinn, when he made oath thereto, and by reason of said report he obtained a credit of said sums so falsely and wrongfully entered by the defendant as having been paid and remitted to the auditor.” On the 30th of October, a general demurrer to each paragraph of the information was overruled. Thereupon the defendant entered a plea of not guilty to each paragraph of the information, and by consent, both of the attorney general and of the .defendant, entered of record, it was ordered that all — 531 — testimony which was to be read upon the trial of the information was to be by depositions, and the case -set for trial on the 11th day of March, 1901. On the 31st day of January, 1901, the attorney general hied supplemental information, charging that, since the institution of this proceeding, various additional grounds for the removal of the defendant from office had arisen, and specially charged that in the tri-yearly report made by him to the Fayette Circuit Court, on the 1st day of December, 1900, he failed to account for $153.10 of'taxes collected by him. When the case was called for trial, the defendant moved to strike this supplemental information from the file on the ground that it had been filed without leave of court, and was not covered by the agreement that the testimony to be read on the trial of the case should be by deposition. Before proceeding to an examination of the charges in the information, it will be necessary to dispose of several preliminary questions suggested by the attorney for the defendant. First, it is contended that under the rule laid down in the case of Com. v. Barry, 3 Ky., 237, the attorney general had no authority in law to institute this prosecution without first having obtained leave of court to do so, upon probable cause shown. The constitutional provision in force at the date of the proceeding against Barry in 180S was substantially the same as that embodied in our present Constitution; but there was at that time no statute regulating the mode of procedure, and in that case the court decided that the proceeding must be instituted by the leave of court, and that probable cause must be shown to obtain that leave. And this method seems to have been followed in the later case of Com. v. Arnold, 13 Ky., 309, and Com. v. Rodes, 31 Ky., 595. — 532 — But, subsequently to the determination of these eases, the Legislature has prescribed the mode of proceeding in this kind of cases, which in most respects is in accord with the rules adopted by this court in the case of Com. v. Barry, but there is nothing requiring the attorney general to first obtain leave of the court to file information. On the contrary, the institution of the proceeding is left to his discretion. But having once filed the information, and the court having thereby acquired jurisdiction of the proceeding, they are entitled to regulate the questions of amendment, under section 134 of the Civil Code of Practice.' And as the offense charged in the supplemental information is alleged to have occurred after the institution of the-proceeding, and is not covered by the agreement that the testimony in the case should be by deposition instead of by parol, as contemplated by the Code, a majority of the judges are of the opinion that this amendment should not be allowed, and that the offense therein charged has not been considered upon this hearing, and the amended information is stricken from the file. We will consider the charges made in the original information, and the proof offered in support thereof. First, that the defendant has sold, or let to farm, his office to the Fidelity & Deposit Company of the State of Maryland, in violation of section 3740 of the Kentucky Statutes. The testimony on this point conduces to show that during the month of July, 1900, the defendant ascertained, from the reports made to Mm by expert accountants employed by him to check up his accounts, that he had fallen behind to a considerable extent in his payments to the auditor of certain items of revenues due the State, which had been collected by persons employed in his office, and which they had neglected to enter upon the cash book for that — 533 — purpose, and that upon the ascertainment of this fact he immediately notified the Fidelity Company, who were his securities upon his official bond, and asked their assistance in raising the money necessary to pay off this indebtedness. After full investigation, the security company agreed to advance the money necessary for this purpose upon the condition that the defendant would employ more thorough and systematic methods in looking after the financial side of his office, and to this end it was agreed that the defendant would employ a deputy, who should have the exclusive charge of moneys paid into the office, to be by him deposited in the bank to the defendant’s credit as clerk of the Fayette County Court, and who should have the exclusive right to check on this account in payment of the current expenses of the office and the dues of the defendant to Jhe State; this deputy being required to give bond for the faithful discharge of his duties. Defendant also agreed that any surplus arising from the fees of the office,, which belonged exclusively to him, should be used to repay to the company the money so advanced by them; but there is no evidence that the defendant made any agreement to sell, farm, let, or surrender the control of his office to the company. On the contrary, the testimony shows that from, this time' on he has given his office more •attention than ever before, and th-at, without let -or hindrance from anybody, he has discharged old clerks and deputies, and employed new ones to fill their places, as-his interest and the efficiency of the office seem to require. There is no charge or proof that the shortage in defendant’s office was due to any willful or intentional wrongful act or neglect on his part, and it seems to us that the changes in the management of the office suggested by the security company and agreed to by defendant were — 534 — such as should have obtained in the management of the county clerk’s office in a large and populous community, and were in all respects legitimate and proper; and, while the testimony conduces to show some degree of carelessness on the part of the defendant in the administration of his office previous to this time, we do not think that it was sufficient to authorize the infliction upon him of the severe penalties imposed by the statute, even, if they were made a ground of complaint, which has not been done in this proceeding. The court is unanimously of the opinion .that this charge has not been established by the proof. There is no controversy as to the facts contained in the second charge of the information. It is admitted by the ■defendant that he swore to and filed the tri-yearly report, a copy of which is filed with the information, in the Fayette ■Circuit Court, on the 4th day of June, 1900; and, in explanation of this action on his part, he says that Mr. .Sweeney qualified and took possession of the office of Auditor of Public Accounts for the State of Kentucky on the 1st day of January, 1900, and that subsequently thereto Mr. Coulter, wflo was the rival candidate for the office ..at' the preceding November election, instituted a contest therefor before the election commission, and that, after -the determination of the contest by the-election commission in favor of Coulter, he instituted a suit for the possession of the office in the Franklin Circuit Court, and that this litigation as to who was the rightful auditor was still pending and undisposed of in the court of appeals of Kentucky on the 4th day of .June, 1900; and that Sweeney and Coulter both claimed to be the rightful auditor, and each had given him written notice, warning him not to pay the money in his hands due the State to the oí her, and -threatening him with suit in the Franklin Circuit Court if — 535 — he did so; that, under these circumstances, he counseled with his attorney and other friends who advised him not to pay any more money to either of the claimants until the-contest was finally settled; that, while this question was still undetermined and pending in the courts, the time for-making his tri-yearly report to the Fayette Circuit Court, in fhe presence of the grand jury came around, and that he went to see the judge of the Fayette Circuit Court, and explained to him that he had not paid to the auditor the-money in his hands due the State which he had collected, after the institution of the contest, and told him that the' deputy in the office whose duty it was to make out these-reports upon the printed blanks furnished by the auditor-had made out the report so as to show the net balance in his hands less the amounts paid by monthly remittance to-the auditor and to the trustee of the jury fund, but that' as a matter of fact he had not actually remitted the money to the auditor, but had retained it in his possession to await the determination of the litigation as to who was. the rightful auditor; and that the circuit judge said to him-that he did not know what to tell him to do, but that he had better let his report be filed, and that he accbrdinglydid so. He also states that he had given the same information to the clerk of the circuit court at' the time he swore to the report. And these statements of the defendant are not contradicted. It also appears that after the-final determination of the contest for the office of auditor by this court, and after the defendant had ascertained correctly the amount of his indebtedness to the State, he paid all of such indebtedness, including- a large amount by way of penalties. There is no allegation that, at the time this information was filed by the attorney-general, the defendant owed the State a dollar, nor is there any charge — 536 — that be was actuated by any corrupt motive in filing tbe report with the circuit clerk. ECe certainly could not expect to get any credit for money paid to the auditor by filing this report in the circuit court clerk’s office, as such -credit could only be given by the auditor on his books. In view of the entire absence of evidence of a corrupt motive on the part of the defendant in making the affidavit referred to, and also of the fact that no substantial injury accrued to the State by reason thereof, a majority of the judges of this- court are of the opinion that a removal from office should hot be adjudged on either of the charges contained in the information filed by the attorney-general. It is therefore adjudged that the defendant be acquitted of the charges that have been preferred against him as clerk of the county court of Fayette county Chief Justice Paynter and Judges White and Guffy dissent.