State ex rel. Garber v. Cazalas

SIMPSON, J. 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 [212] ent Constitution contains substantially tbe same provisions in so far as the matter now under consideration is concerned (sections 173 and 174), but has added another provision, to wit: “Whenever any prisoner is taken from jail, or from the custody of any sheriff or his deputy, and put to death or suffers grievous bodily harm, owing to the neglect, connivance, cowardice or other grave fault of the sheriff, such sheriff may be impeached under section 174 of this Constitution.-” — - Const. 1901, § 138. When this section was before the Constitutional convention, it was fully discussed. Some members thought that it was holding the sheriff to too high a degree of responsibility, and it was moved to make it read “gross neglect,” but the wording, as reported by the committee, was retained, and the remarks made by the members of the convention show that they intended just what they say, and that a prisoner when he comes into the hands of the officers of the state shall be panoplied about with all the powers of the state, and as sacred from interference “as the ax’k of the covenant.” The Constitution makers evidently intended to place the sheriff in the breach and hold him to the strictest accountability for the safety of the persons committed to his care. It xxiust be admitted that the law is severe and exacting, but the evil which it was intended to correct deixxands strexiuous nxeiasures of prevention. In this free govexmmeixt of ours respect for the laws' is the very base rock upon which must rest all- of our liberties, and if mob law is ever justifiable, then the most cherished principles of that body of laws which we call common, and which have coxxxe to use hallowed by the wisdom of ages, and which we have ixnbedded into our Constitutions, are wrong, and the boasted rights and liberties of the Axxxerican citizen constitute a solemn farce. “Neglect is the omission or forbearance to do a thing [213] that can be clone, or that is required to be done,” “to omit by carelessness or design,” or’ “imports a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns.” “Neglect, as applied to a public officer, means a failure on his part to do and perform some of the duties of his office.” — 5 Words & Phrases, p. 4740; White, Auditor, v. State ex rel., etc., 123 Ala. 577, 26 South. 343; Warren v. U. S., 58 Fed. 559, 562, 7 C. C. A. 368. When the state' or county has provided a suitable and well-constructed jail, with strong doors, not only to prevent the escape of prisoners, but also to prevent the unlawful entrance thereto, it is questionable whether it is not the duty of the sheriff at all times to make use of those means of protection against possible intruders. The sheriff cannot presume that those who desire to invade the premises will inform him of the fact, or make such a demonstration on the streets as to advertise their intentions. However that may be, when a crime of peculiar enormity has been committed exciting public indignation, when it is known that such crimes always bring about suggestions that the prisoner be taken out and lynched, and when, in addition to that, the suggestion is made to the sheriff that there is a probability of an attempt to take the prisoner and lynch him, ordinary prudence would suggest that the sheriff should at- least give orders that all the doors by which an entrance may be effected into the jail should be closed and take other precautions when he leaves it for the night. It will not do to say that the basement is under the charge of an engineer and to infer therefrom that the sheriff has no responsibility in relation thereto. He is the legal custodian of both the courthouse and the jail, and it is his duty to exclude intruders therefrom. — Pol. Code, § 132; Or. [214] Code, § 7191. If he commits the charge of the basement to an engineer, it is his duty to make such rules and regulations as will insure the building from the entrance of intruders. It was then neglect on the part of the sheriff under the circumstances of this case to fail entirely to give any orders for the closing of the doors before leaving the building for the night. He is not responsible for the negligence of his deputies if he has made proper selections and given them proper directions; but he is responsible for not instructing them to take the proper precautions. ■ 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. Dowdell, O. J., and Denson, McClellan, and Sayre, JJ., concur.