Summary
holding that where communications to a prosecuting officer were made for evil purposes, such communications lost their privileged character
Summary of this case from State v. BissantzOpinion
Decided November 27, 1931.
Officers — Forfeiture of office for misconduct — Section 10-1, General Code — Verification of complaint unnecessary — Issue of number of petition signers and qualifications cannot be made by answer — Communications to prosecuting attorney in promoting unlawful act, not privileged.
1. A complaint filed to secure the removal of a public official under Section 10-1, General Code, need not be verified.
2. Where such complaint appears on its face to have been signed by the required number of signers, and such required number are apparently qualified to so sign, no issue on either the number of signers or their qualifications can be made by answer.
3. Communications made to a prosecuting attorney in promoting an unlawful act are not privileged.
ERROR: Court of Appeals for Franklin county.
Mr. C.M. Addison and Mr. John E. Todd, for plaintiff in error.
Mr. Newton D. Baker and Mr. Charles S. Druggan, for defendants in error.
A complaint was filed in the court of common pleas of Franklin county under favor of Section 10-1 et seq., General Code, praying for the removal of Homer Z. Bostwick as probate judge. A hearing was had and an order of removal was made. From this order the respondent has prosecuted error to this court. The case has been thoroughly presented in this court both by oral argument and brief. A wealth of authorities have been cited. An opinion dealing with any considerable proportion of these authorities would be intolerably long, and in the view taken by us the application and analysis of these authorities are unnecessary.
1. The statute under which the proceeding was brought violates no provision of the State Constitution. On the contrary, its provisions are in direct response to the mandate imposed by Section 38, Article II, of the Amendments of 1912. That amendment imposed upon the Legislature the duty of passing law for the prompt removal of public officers for misconduct involving moral turpitude, or for such other causes as the Legislature might prescribe. The constitutional provision does not require that the moral turpitude for such removal shall be evidenced by an official act. The character of the officer, and not the time or place or circumstances of its exhibition, lays the groundwork for removal. It is not apparent how the statute does or could offend against any provision of the Federal Constitution.
2. The allegations of fact in the complaint required no verification. The statutes under consideration created a special proceeding, and, while the Legislature might have made such proceeding subject to the Code of Civil Procedure, it did not do so and did not need to do so. Special proceedings sometimes require no pleading at all, Stewart v. Logan County, 1 C.D., 404, 2 C.C., 134, even in quasi criminal proceedings, Wadsworth, Sheriff, v. Parsons, 6 Ohio, 449, Steube v. State, 2 C.D., 216, 3 C.C., 383. In the case at bar, a complaint was required, but not a verified complaint. Graham v. Stein, 4 C.D., 140, 18 C.C., 770. If a verification had been deemed desirable, it would have been expressed, as in those other special proceedings created by Sections 12110, 1647 and similar sections of the General Code.
3. To invoke the jurisdiction of the court there were required the signatures of a thousand petitioners, electors of the county. It is not claimed that the requisite number did not sign this complaint, but it is urged that while the required number apparently did sign they did not on the hearing prove their several qualifications to sign. The respondent did not move to dismiss the proceeding on the ground suggested, evidently for the reason that the burden would have been upon him to sustain his motion. He was satisfied to file an unauthorized answer in equivocal language, which he asserted raised an issue of fact on the qualifications of the complainants, requiring proof thereof by the complainants. This is unsound. The gist of the proceeding is not how many complainants there are, but the truth or falsity of the charges. A complaint with more than the number of required signatures, sponsored by members of the bar, with nothing to reflect on the genuineness of the signatures or the good faith or competency of the signers, is presumably what it appears to be. If in fact enough of the signatures to reduce the whole to less than one thousand are fictitious, or if the body of signatures is so saturated with forgery as to constitute a fraud upon the jurisdiction of the court, it is incumbent on the assailant of that jurisdiction to plead and prove such facts.
4. We have no disposition to review the facts upon which the trial court found the respondent guilty of gross immorality. Nor do we propose to attempt a definition of that term. This court has heretofore expressed its inability to lay down a satisfactory definition. Seitz v. Ohio State Medical Board, 24 Ohio App. 154, 157 N.E. 304. In that opinion, at page 161, it was said:
"In West Virginia the Court of Appeals says that gross immorality must be determined according to the common understanding of the ordinary, law-abiding, and reasonable citizens of the country; that the term implies a willful, flagrant, or shameful course of conduct, showing a moral indifference to the opinions of the good and respectable members of the community and to the just obligations of the position held by the delinquent. Moore v. Strickling, 46 W. Va. 515, 33 S.E. 274, 50 L.R.A., 279."
We applied this principle in the Seitz case, and follow it now in holding that the undisputed facts in this case show gross immorality. In this paragraph we have reference only to the conduct of the respondent with the woman in the case, without reference to the facts in the paragraph following.
5. Much evidence was introduced bearing upon the efforts of the respondent and others to secure from a woman a ring which appears theretofore to have been given to her by the respondent. The tendency of this testimony was to show that repossession of the ring was sought by intimidation. If this theory of the case were sustained it would show an additional act of gross immorality, and also misconduct in office, as, if true, it showed that clerks in the probate court were used for this unlawful purpose. Evidence of the acts and declarations of the several actors in this movement was mere hearsay, as against this respondent, unless such actors were in conspiracy to effect this unlawful purpose. The evidence tended to show that the attempt to repossess the ring was initiated by the respondent, and culminated in his repossession of it. The record is clear that the respondent knew that the woman was in custody of a deputy sheriff immediately prior to the ring being restored to him. From this and other circumstances a deduction that he was a party to all that was done towards the recovery of the ring might be drawn. Certainly, with a number of circumstances pointing towards the respondent's knowledge of what was being done, an inference that he was a party to the conspiracy was permissible in view of the fact that he might have, but did not, deny such knowledge.
The triers of fact were under the circumstances warranted in concluding that a conspiracy did exist, and that the respondent was a party thereto. This being so, they had a right to weigh the acts and declarations of all parties to the conspiracy. The motion to exclude this character of testimony as hearsay was consequently properly overruled.
6. The further claim that the evidence referred to in the preceding paragraph, even if admissible as against the hearsay rule, ought nevertheless have been excluded in large part because it involved privileged communications made to an assistant prosecuting attorney, is unsound. Certainly that view is not sustained by anything said in Taplin-Rice-Clerkin Co. v. Hower, 124 Ohio St. 123, 177 N.E. 203, and Stephenson v. McCurdy, 124 Ohio St. 117, 177 N.E. 204, recently decided by the Ohio Supreme Court, or in Vogel, Exr., v. Gruaz, 110 U.S. 311, 4 S. Ct., 12, 28 L. Ed., 158. Whatever may be the privileged nature of communications made in good faith to a prosecuting attorney with a view to instituting criminal proceedings, how such privilege must be raised, and by whom, are questions into which we need not enter. The testimony of the lawyer who approached the assistant prosecuting attorney clearly shows that he was not seeking to institute a legitimate prosecution, but that he was solely interested in using the prosecuting attorney to recover personal property for his friend, and all of the circumstances without a single exception corroborate that witness in that respect.
The Supreme Court of Kansas has been vigilant in its support of the privilege to be accorded communications made to a prosecuting attorney in a proper proceeding. Michael v. Matson, 81 Kan. 360, 105 P. 537, L.R.A., 1915D, 1, following Vogel v. Gruaz, supra. When, however, the Supreme Court of that state had to do with communications made to a prosecuting officer for evil purposes, it held that such communications lost their privileged character. The reason was that the rule of privilege rests upon public policy, and public policy did not justify the claim of privilege where the purpose to be served by the communication was an improper one. State v. Wilcox, 90 Kan. 80, 132 P. 982, 9 A.L.R., 1091.
There was no error in overruling the claim of privilege in the case at bar.
Other matters discussed in the brief and in argument do not seem to require comment. The record is free from prejudicial error.
The judgment is affirmed.
Judgment affirmed.
MAUCK, P.J., MIDDLETON and BLOSSER, JJ., concur.
Judges of the Fourth Appellate District, sitting by designation in the Second Appellate District.