The opinion
RILEY, J.
(dissenting). I think a special proceeding in removal of officers under our statute is criminal in its nature. It is so because the statute, section 2404. Compiled Oklahoma Statutes, 1921, so provides. While it is true said section is not applicable in all respects, particularly as disclosed by the opinion of Maben v. Rosser, 24 Okla. 588 , 103 Pac. 674 . The trial cannot be conducted “in all respects in the same manner as the trial of an indictment for a misdemeanor,” and at the same time be tried in the district court as provided by section 2412, and section 2395, Compiled Oklahoma Statutes, 1921, considering that a jury in the county court is composed of six men and in the district court of 12, yet the section first mentioned is workable as to the degree of proof required and as to the instructions of the court relating thereto. True, as to this issue, Maben v. Rosser, supra, is obiter dictum, so is the expression of the court in Freas v. State, 109 Okla. 205 , 235 Pac. 227 . In no previous case of this court have I been able to find the question squarely before the court.
While it may be argued that to a jury there is little difference between the terms “beyond a reasonable doubt” and “a clear preponderance of the evidence,” and it is true these are relative terms, yet the law is for the court to determine, and the trial judge, as he is sometimes referred to, as the thirteenth juror, must approve the verdict as an application of the facts to the law, and to him as a result of his training and practice there is and should be a vast difference between the degrees.
Section 2408, Compiled Oklahoma Statutes. 1921, considers the matter criminal in its nature, for it says in part:
“The accused shall have the right to a change of judge, as to a change of venue, an application to the court, or to the judge if the court be not in session, on making; the showing required to change the venue in a criminal case, * * *”
Section 2409, Compiled Oklahoma Statutes, 1921, contemplates the nature criminal. It says:
“The question of fact shall be tried as in other actions. * * * or as provided for in the Code of Criminal Procedure.”
There is a considerable conflict in the authorities with respect to whether such a proceeding, in the absence of statutory provision, is of a civil or criminal nature. 22 R. C. L. 573; Territory v. Sanches (N. Mex.) 94 Pac. 954 , 20 Ann. Cas. (note) 109.
Massachusetts holds the proceeding civil in its nature. Dow v. Casey (Mass.) 79 N. E. 810 (citing Rev. Laws, c. 173. Mass.). Georgia holds it to be quasi criminal. Gill v. Brunswick (Ga.) 44 S. E. 830 . North Dakota holds it may be either civil or criminal in nature, depending on the procedure adopted in the particular case. Wishek v. Becker (N. D.) 84 N. W. 590 . California
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decides the matter to be criminal, not only in its nature, but wholly so, but bases it upon the statute: “A crime or public offense is an act committed or omitted in violation of the law forbidding or commanding it, and to which is annexed upon conviction either the following punishments: * * * (4) Removal from office.” Wheeler v. Dennell (Cal.) 43 Pac. 1 ; Kilburn v. Law, Judge (Cal.) 43 Pac. 615 . Alabama holds the guilt of respondent must be established beyond a reasonable doubt. State v. Talley, 102 Ala. 25 , 15 South. 722 . Utah holds that under their statute the proceedings are civil, not criminal, and where there is no dispute in facts, the trial court may direct a verdict, but that the rules governing the introduction of evidence in criminal cases must be followed and the guilt of defendant must be established with the same degree of proof required in a criminal prosecution. Skeen v. Paine (Utah) 90 Pac. 440 . And in Skeen v. Craig (Utah) 86 Pac. 487 , it is said;
“True, section 4575 of the same act as is section 4580 provides that the trial shall be conducted in the same manner as the trial of an indictment or information for a felony. The Legislature doubtless intended by this provision to throw around the accused the same safeguards with which the law clothes a defendant in a criminal action. The same rules governing the introduction of evidence must be followed, and the guilt of the defendant must be established by the same degree of positive proof as is required in criminal prosecutions generally. It does not necessarily follow from this that a proceeding commenced in pursuance of the act in question is to be classed as a criminal action.”
I think the court should have instructed on the theory of a criminal case, and so required the jury to find the respondent guilty beyond a reasonable doubt.
It is important that an unfit officer be removed, and I would' not question the sufficiency of the evidence in this case, yet it is more important that the procedure for removal be definitely established, so that rights of officeholders be protected.