State ex rel. Vaughan v. Richmond , 29 La. Ann. 705 ( 1877 )

The opinion of the court was delivered by

DeBlanc, J.

On the thirteenth of June 1876, the defendant was, by a decree rendered by the judge of the fourteenth district, suspended from the discharge of his duties as the sheriff of the parish of More-house. That decree is based on a written statement filed by the district •attorney pro tempore, that said sheriff has willfully failed and neglected to execute writs and orders to him directed, and to make return of the same to the courts by which they were issued.

From that decree, defendant has appealed, and, as he did before the district judge, he contends here:

First — That the office of district attorney pro tempore has been abolished by the first section of act No. 44, approved on the ninth of March 1874, a,nd that, as it is not sworn to, the statement of Frank Vaughn, as •a private citizen, is insufficient.

Second — -That, if Vaughan was a district attorney pro tempore, he was without authority to act in this proceeding, because the district attorney was in attendance on the lower court, when the aforesaid statement was filed.

Third — That, so far as they relate to the suspension of sheriffs from office, sections 1177, 3592 and 3593 of the Revised Statutes of 1870, are unconstitutional and void, because — 1st: the object of the law is not expressed in its title — 2d: a sheriff can be removed from office but by the General Assembly.

First — On the twenty-fpurth day of February 1876, one Ingram Law killed B. A. Phelps. He was indicted for murder and a true bill found' against him. At the foot of the indictment, there is the following declaration, written by the district attorney. “ I refuse to sign this bill, for the reason,of my -relationship to the accused, and for other reasons.” It-was after that refusal that the indictment was signed by Vaughan, as-district attorney pro tempore.

Defendant’s counsel contends that the office of district attorney pro tempore was abolished by an act of the Legislature of the ninth May 1871. We believe otherwise. 26 An. p. 518; State ex rel. Thos. Farrar vs. H. A. Garret.

It is true, as a general rule, that district attorneys pro tern, can represent the State only where the district attorneys are absent; but they can certainly do so, when, though present, the district attorneys are unable or unwilling to act. In this case, we must and do presume that, as one of the principal causes of the proceedings against the sheriff, was his-failure to have arrested Law, the district attorney, for the reason which induced his first refusal, declined to attend to said proceeding and left-that task to his substitute. Far from being an irregularity, this course-was proper and commendable.

Second — In his able and exhaustive argument, the attorney representing the sheriff, contests the constitutionality of the law empowering the judge to suspend a sheriff. He maintains that .this suspension is a removal, and that a sheriff can be legally removed but by the General' Assembly.

What is a removal ? It is the act of permanently displacing one from an office or post. What is a suspension ? It is, exclusively, an interruption in the exercise of the officer’s duties, of his authority.

In every land, under every form of government, as a censure or as a-penalty, ministers and priests, civil and military officers have been suspended and deprived of their emoluments and privileges. In the armies-of the world, though an officer may have paid with his blood the right of wearing his sword, the power to suspend him has never been denied. Why then, if a sheriff has disregarded the duties imposed upon him by his commission, his oath and the law, hesitate to check his flagrant incapacity, and guard society against the danger of his criminal negligence ?

The delegation to a judge of the legitimate power to suspend a sheriff, when that sheriff has neglected or refused to perform his duties, is not prohibited by the constitution and not in conflict with any of its clauses. The exercise of that power is indispensable to the existence of a court, for it would be far better to have no court, than tó have one, the mandates of which' are ridiculed, despised and resisted.' Those mandates should ever be a terror to felons, and, to be a terror, they must be éxecuted.

Third — One question remains to be examined, and that is:

Has defendant, in his capacity of sheriff of the parish of Morehouse, discharged .the duties of his office? He has not.

Warrants were placed in’his hands for the arrest of four parties indicted for murder. Two of those parties, Kennedy and Law, were fugitives from justice. One of them left the parish of Morehouse, but soon returned there. Two or three demonstrations were organized by the sheriff, for the published purpose of capturing those fugitives, but those demonstrations were too transparent to deceive any one. They were false pretenses, forged letters of credit drawn on the public credulity, and a notice to those who had violated the law, not to be on the highway, at the store, the club-room or the church; and, for these vain displays, these farces, the people are to be taxed.

Mr. Wright, one of the defendant’s deputies, testified “ that Law had been at his house in Bastrop: he started, out three times with Richmond, to assist in arresting Law; the first time they went a mile out of town, the second time two miles and afterward three miles. Richmond wanted to go further, but the posse refused. It was raining and the posse thought the sheriff was drinking too much. He heard every morning that Law had been in town.

Mr. Rutledge said: Wright, the deputy sheriff, brought me a note, from Law, in which he asked me to come and see him.

Mr. Grant is a resident of Bastrop. Law was at his house, told him to inform Richmond that he had come to stand his trial and not to put himself to any trouble: that he did not want to surrender before the commencement of the jury session.

Richmond said: I do not think that those I summoned as a posse kept my movements secret. It seemed to be known all over town when I intended to go.

As to Kennedy, according to the declaration of McGowan, he has been in the parish of Morehouse, and about his father’s place since one year or more.

J. A. Ross, the principal deputy of Richmond, declared that, since the latter was sheriff, he had in hand many warrants against parties who were not arrested, and that he never made a return with an affidavit thereto attached.

One of the deputy sheriffs suggested to Judge Bussey that if a sufficient reward was offered, somebody would arrest Law. He inquired, from the judge, whether the son of Dr. Phelps was going to offer a reward or not.

McDowell .was arrested for rape: defendant’s deputy testifies that, while he was eaiing his breakfast, his prisoner got away. It took him by surprise, for in his own language: “ previous to the time of escaping, the prisoner liad made no effort to escape.

On the second of June 1876, Richmond was indicted and a true bill found against him, for having collected illegal fees; he was arrested and released on bond to appear before the district court.

We pass unnoticed the minor details.

Defendant was charged and stands convicted of a gross, manifest and unjustifiable negligence in the exercise of his duties as sheriff — of a negligence which amounts to a moral complicity with men indicted for murder. As remarked by Mr. Justice Martin, “ those who minister in the temple of justice, from the highest to the lowest, should be above suspicion and reproach. None should serve at its altar, whose conduct is at variance with his obligations. Surely he, who can give his aid and sympathy to screen offenders, should not be trusted to take any agency in their prosecution.” 2 N. S. p. 703.

The restricted lines of a parish' or of a State should not place, beyond the reach of a warrant, those who are charged With murder. Those lines should be crossed, the murderer pursued, tracked and arrested. Until he accounts for the blood he has spilled, he should, in no corner of the world, be allowed to stop and to rest, much less should he be permitted to prowl, heedless and defiant, in the immediate vicinity of the temple of justice and the grave of the victim.

With as careless a sheriff as defendant was, the nefarious deeds of assassins and robbers would be encouraged and multiplied, for, they could, without apprehension, trample under their feet the laws of the State, of society and of God, the rights, the flesh and the lives of those who have been brought to trust to those laws for their protection.

In so far as it orders the suspension of defendant, as sheriff of the parish of Morehouse, there is no error in the decree appealed from, and that decree is affirmed with costs.