Killits v. State

19 Ohio C.C. 740

• Court: Ohio Circuit Courts
• Decided: October 15, 1898
• Status: Published

Opinion

PER CURIAM.

The proceeding in the court below in this case was under section 1272, Revised Statutes, to remove plaintiff in error from his office of prosecuting attorney of Williams county, Ohio, or alleged wanton and wilful neglect of duty, and gross misconduct in office.

It is provided by the statute that this complaint shall be filed and heard before, and the questions involved determined by the court of common pleas, and that said court shall render judgment therein removing the officer from his office if found guilty, and against the losing party for costs.

The judgment in this case was against the plaintiff in error in removing him from office. We hold that this was a judciail inquiry in a special proceeding; that the judgment was final and affected a substantial right of the plaintiff in error, and that therefore error may be prosecuted thereto by him in this court.

The charges and specifications on which the complaint is based are an offense under section 6909, Bevised Statutes, whereby they are made punishable by fine or imprisonment, or both, and removal from office, and disqualification to hold office.

The only penalty, however, that may be imposed in a prosecution of this character under section 1272, Bevised Statutes,' is removal from office, involving deprivation of the salary and emoluments thereof, and payment of costs.

We hold,nevertheless, that section 1272 is essentially penal in its character, and that the proceeding, though not distinctly a criminal prosecution, is yet not a civil action, or proceeding, but that it has so far the elements of prosecution for crime, where, as in this case, it is based upon charges of crime, as to-come fairly within the category of “proceedings against a-person charged with the commission of an offense,” mentioned in sec ion 7286, Bevised Statutes, and that therefore-“the person so charged shall, at his own request, but not otherwise, be a competent witness,” as provided in the section last cited.

The provisions of the civil code as to the competency of witnesses, and as to the defendant being obliged to submit to examination as a witness upon the call of his adversary, do not apply to a proceeding under section 1272, Bevised Statutes, where the complaint is based upon alleged crimes under section 6909.

There is no statute affording him protection from prosecution on account of offenses divulged by him as a witness in a proceeding of this character. Kuder v. Cronice, 7th Ohio, 2nd pt., 249. In the case at bar it appears from the record that upon the defendant being called as a witness by the prosecution to testify, “upon the issues joined” he, through his counsel, objected to testifying, but that this objection was disregarded. and he was required to testify, to which ruling and' order of the court he excepted. That the facts sought to be elicited from him as a witness were such as tended to support the charges and specifications is not left to rest upon presumption, but is made clearly apparent by the ensuing, examination.

We are-of the opinion that the court erred in thus requiring the defendant to testify, and that this was clearly prejudicial error requiring a reversal of the judgment. Kuder v. Cronice, supra.

The evidence thus obtained must be disregarded by ms; and-as the defendant was the only witness called, and there was no other evidenco submitted in support of the charges, (the exhibits resting and depending upon hié statement as to authenticity), we hold that the charges are not sustained by any competent evidence.

As the record stands, with this evidence eliminated, various questions debated before us as to the legality of the charges indicated by the bills attached, and as to the degree of guilty knowledge and intent necessary to be established to support the charges, become mere abstract questions, and we do not deem it proper or expedient to enter upon a discussion thereof, or to express our views thereon.

It is sufficient to say that the complaint sets forth sufficient grounds for the proceedings.

For the reasons stated the judgment of the court of common pleas in this ease is reversed and the case is remanded to that court for further proceedings according to law, and judgment will be entered against the defendant in error for costs of this proceeding in error.