New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-10-25
. FRIDAY,
OCTOBER rs. 1895.
THE SHERIFF'S DEMURRERS
ONE ALLOWED AND THE OTHER OVER
RULED
JUDGE FITZGERALD FINDS THAT THE Npfcr
MENT FOR NOT REMOVING THE INcOM-
prrrxT OFFICIALS WEAK

MENT FOR NOT REMOVING THE INCOM-
PETENr OFFICIALS IS WEAK
Judge Fitzgerald in General Sessions yesterdaS
rendered his decision the demurrers to the ndicc
men;s against Sheriff Tamsen in connection with thu
escape Of the three postoffce robbers from Ludlow
Street jail on July T. The first demurrer was over
ruled and the second allowed. Judge Fitzgerald 10
his decision on the first count says:
Section SO Of the Penal Code reads as follows; -
oner lawfully in his custody In any action or PFC.
ceeding. civil or criminal, or In any prison under
HIS control. to escape go at large except as per.
mited by law, connives at or assists such escape
complished. or contributed to assisted. is,
81. II he corrupty and wilfully allows. connives
.2 In any other case is gully OF a misiemeanor"
The offence described in this Indictment belongs
to the second class provided for by subdivision
Tae, Indictment, assuming the facts - sher Ella
commission Of crime II is contended by coun-
sci for the defence that the facts as alleged can;
not be proven. II So the defendant VIII be entitled
a direction upon such failure. But The question
to be determined upon the demurrer Is Doe: the 10.
requirements and does 1t alege acts which y
proven as laid would constitute criminal onencs.
sufficient. Demurrer disaIlowed and Judgment for
the people ordered thereon with leave to the De-
PENDANT 10 plead over.
The decision on the demurrer 10 the other indict-
ment is in part follows:
This Indictment charges the defendant. the sherln
M %ean no toy to- w ao Segec Of duty in falling
May 81 and July ISS e remove one n de rbsr,s:
schneer. Keepers. Of the county jail.
Section H. Penal Code reads as follows: "A pub
me upon or Rom any duty is enoned BY law who
wiifuliy negees to perform the duty Is guilty OF
apply to Of official acts or omissions. tne
prevention u punishment OF wnich Is otherwise
1t contended that this statute is only applicable
a of an ircO
so expressly commanded. Section LIB OF chapter
40 Of the Iaws OF ~ ne Snen and * ke enc
ers of the Jail No definite terms fixed for these
oficias and it is well settled that under such cir
cumstances they may a any time be removed az
will by the appointing power people ex rel Griffin
* bai iss i y ' People s' rel cuns vs.
Having such discretionary power, IT is incumbent
upon a public officer TO remove incompetent sub
ordinate5 as soon as their incompetency becomes
known: and by wilfully emitting to do so ne conn
mits an indictabe offence and cannot shield him
self by claiming that there is no express statutory
nane9n laid upon him The prneaP'e Is ,, rs
much part OF the statute as II 1t were specially
Nor do / consider the failure to allege any mis-
chief as having resulted from the negligence fatal
to the Indictment As the negligence itself Is the
substantial offence charged such negligence under
the statute constitutes crime. IL has been held
that it Is indciable offence for officer to be
harm may come to the public from his misconduct.
but he has put himself in position rom whicn
much harm might result, and for so doing ne Is
amenable to penal Justice
legations OF this Indictment sufficiently specific
and certain? 1t is charged that the defendant
knew the before men toned warden and keepers to
be grossly unfit improper and incompetent persons
for the offices and places so held by them ana
that nevertheless he wllfully and unlawfully neg
lected TO remove them.
I cannot conceive under such general charge
what limitations could be placed upon the admis-
sion OF testimony. There are no facts averred,
showing in what manner these persons were grossly
unit. Incompetent and improper
| am OF the opinion that the demurrer should be
allowed and accordingly direct thereon judg'
ment for the defendant