48 Ky. 90 | Ky. Ct. App. | 1848
delivered the opinion of the Courl.
In this action of debt, brought by Maxey on a note ,for $200, executed by Gardner to Sturgeon, and assigned to the plaintiff, the defendant pleaded three pleas, which were adjudged bad on demurrer. The defendant having failed to plead further, a judgment was ren■dered against him, and the case comes before this Court upon the single question of the sufficiency of the pleas. ■Each of them presents substantially the following facts, •viz: That the said Sturgeon was about to prosecute the defendant on a charge of felony, for having maliciously stabbed him with intent to kill, as he alleged; that he had consulted with the attorney for the Commonwealth upon the subject, and had been called to upper before ■the grand jury, then in session, to testify as to said alleged offence; and that under these circumstances the note was executed, in consideration of Sturgeon’s agreement to stop said intended prosecution, and not to appear before the grand jury to testify in relation to said alleged stabbing, and to dismiss an action of trespass for assault and battery, which he had brought against the defendant for the same alleged stabbing.
It is well settled, that if any part of the consideration of a promise, whether verbal or written, sealed or unsealed, be illegal, the entire promise is void. And it is equally well settled, that the compounding of a prosecution for a felony or other public offence, or an agreement to suppress evidence in a judicial proceeding, is illegal as being against public policy, subversive of the end and object of the laws, and injurious to the morals, good order and safety of society. And although the pleas show that a prosecution had not been formally commenced, and do not show explicitly that a felony had been committed, they certainly present strong
It is true, that notwithstanding the agreement alleged, the party who had agreed to stifle the threatened prosecution, might have been compelled to appear and testify before the grand and petty juries, and.the prosecution might have been instituted and carried on to its proper termination.
But the same would be substantially true if an indictment had been already found. It is as clearly against ■the principles and policy applicable to the subject, to compound or stifle a prosecution about to be commenced as to compound one actually set on foot. And we do not perceive that it is any more essential to the establishment of the illegality of the act in the former case, that it should be made certain that the offence for which a prosecution was threatened, had been actually committed, than it is in the latter case. The Commonwealth, it is true, does not desire the prosecution, and much less the conviction of the innocent, but would prefer rather that even the guilty should escape. But.it is the interest of the Commonwealth, and the policy! and intention of the law, and is essential to public order!. and individual security, that the laws against offences ' injurious to the public, should be fairly administered and enforced. And to this end it is essential that the course of public justice should not be obstructed by private combinations or agreements for preventing the fair investigation of alleged offences. The Commonwealth has a right to rely upon the individual who has received special injury from the commission of a public offence, as the special instrument for its ascertainment and punishment. in the due course of law. The particular in
It was not necessary to aver, as some of the pleas do, that the omission to insert as a part of the consideration or arrangement, the stopping of the prosecution, was by mistake of the draftsman. If the note had expressly stated that this was no part of the eonsidera
Wherefore, the judgment is reversed, and the cause remanded, with directions to overrule the demurrer to each of the pleas, and for further proceedings consistent with this opinion.