Hester v. Langston

Steele Hays, Justice. This is an original action by the petitioner, Perry County Sheriff Jimmy Hester, asking this court to prohibit Circuit Judge John Langston from proceeding to trial upon an indictment returned against Hester by a Perry County grand jury. We granted a temporary writ of prohibition and required briefs pursuant to Rule 16 of the Rules of the Supreme Court and the Court of Appeals. Having considered the arguments we now dissolve the temporary writ of prohibition. On December 17,1987, a Perry County grand jury returned two indictments against petitioner, Sheriff Jimmy Hester. The first indictment charged Hester with violating Ark. Code Ann. § 14-14-1202 (1987), ethics for county government officers and employees. A jury subsequently found the petitioner not guilty on this indictment. The second indictment charged the petitioner with several violations including: (1) violation of county ordinance 0-209, the misuse of county funds; (2) violation of Ark. Code Ann. § 5-36-103 (1987), theft of property; (3) violation of Ark. Code Ann. § 5-54-121 (1987), tampering with a public record; and (4) violation of Ark. Code Ann. § 5-53-103 (1987), false swearing. The petitioner filed a motion to dismiss the second indictment on the grounds that it was void and that it was barred by double jeopardy. Additionally, the petitioner asked for a jury trial which was denied by the trial judge. The motion to dismiss the indictment on the grounds that it was void was denied, but the trial judge did strike relevant paragraphs of the second indictment under the double jeopardy argument. We affirm the trial judge’s rulings. The writ of prohibition is an extraordinary writ and it should never be granted unless the petitioner is clearly entitled to relief and the court against which it is sought is wholly without jurisdiction. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983); Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978). The essence of the writ of prohibition is jurisdictional. The circuit court’s jurisdiction over this matter is decisively stated in the Arkansas Constitution. Article 7, § 27 of the Arkansas Constitution provides: The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from officer for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office. Clearly from the language of this constitutional provision, the Perry County Circuit Court has jurisdiction upon presentment of the indictment to remove the petitioner, the county sheriff, from office. Jurisdiction is not an issue in this case, and thus the writ of prohibition is not appropriate. The petitioner also argues that the trial judge acted beyond the scope of his jurisdiction in denying the request for a jury trial. However, we do not reach that argument by prohibition, as the remedy is by appeal. McClendon v. Wood, Judge, 125 Ark. 155, 188 S.W. 6 (1916). Temporary Writ dissolved and the Writ of Prohibition denied. Purtle, J., dissents.