Thurston v. Clark

Searls, C. This is a proceeding under section 772 of the Penal Code to remove the appellant, P. H. Clark, from the office of sheriff of the county of Glenn, and to recover a judgment for five hundred dollars against him in favor of Joseph D. Thurston, as an informer under said section.

The cause was tried by the court, written findings filed upon which judgment was entered, depriving the defendant of .his office as sheriff of Glenn county, and that Joseph D. Thurston have and recover from said P. H. Clark the sum of five hundred dollars and costs.

Defendant appeals from the judgment and from an order denying his motion for a new trial.

The judgment and order appealed from must be reversed for many reasons, some of which are as follows:

1, It appeared, from what may be termed the complaint, that the defendant was duly elected sheriff of the county of Glenn, and qualified on the eleventh day of May, 1891; that he was re-elected to the same office on the eighth day of November, 1892, and qualified on or about December 9, 1892.

In other words he was his own successor, and under the act organizing the county of Glenn, approved March [28711], 1891, may be presumed to have taken office under his second term on the first Monday of January, 1893.

There are in the complaint about a dozen separate and distinct specifications of acts, averred as violations of law, of which some one-half, as nearly as can be determined, were for alleged misconduct during defendant's first term of office.

As to these charges or specifications the demurrer should have been sustained.

Section 772 of the Penal Code, under which this proceeding is prosecuted, is as follows: “ When an accusation in writing, verified by the oath of any person, is presented to a superior court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer, and such costs as are allowed in civil cases.”