8 Wend. 203 | Court for the Trial of Impeachments and Correction of Errors | 1831
The following opinions were delivered:
The plaintiff in error was indicted as one of the directors of the Mohawk Turnpike Company for neglecting to keep the road of the company in repair. By the act of incorporation, the president and directors of the company are required to maintain and keep the road in good repair and every neglect to do so is declared to be a misdemeanor in the president and individual directors of the company for the time being. Laws of 1800, oh. 105, p. 215. It does not appear what evidence was introduced upon the trial, but we must presume that the public prosecutor proved every thing necessary to show the defendant guilty of the charge contained in the indictment. The act of the 6th April, 1806, reduced the number of directors to seven, four of whom were necessary to do a corporate act; but it does not necessarily follow that four must have been guilty of a neglect of duty in making the repairs. The refusal of one to concur in a resolution directing the repairs, or in making the necessary appropriation for that purpose, may have Been the cause of the road continuing so long out of repair, although all the other directors then in office were entirely innocent. Sickness or necessary absence might have prevented a part of' the directors from acting. It is no excuse to one who' has been guilty of a public offence that -others are equally guilty. This is not like the cases of conspiracy and riot alluded to on the argument, where the concurrence of a certain number is necessary to constitute the of-fence. If only three are charged in the indictment as having been engaged in a riot, and one or more is acquitted, none are guilty of that particular offence, because it appears that the
The proceeding by indictment at common law against a parish, or the inhabitants of a particular district, who were in their collective capacity bound to repair the highway, does not appear to be analogous to this case. The allegation in the indictment in those cases was, that the particular district was bound to repair, but the allegation was negatived if it turned out in evidence that a larger or different district was chargeable. Upon a conviction also at common law, the defendants were not only fined for their past neglect, but the court proceeded by attachment or distress to compel them to make the repairs. The expense was to be borne by the whole district, which was chargeable, in the nature of a tax; it was therefore necessary and proper that the indictment and judgment should be against every part of the district, whose inhabitants were to be taxed for those repairs. It is said that the rule was the same when several persons were chargeable by reason of tenure. I have not been able to find any adjudged case supporting such doctrine, but there are cases which show that where the owner of a manor or other estate is bound to repair by reason of tenure, if he disposes of the estate to divers individuals in parcels, any one or more of the new owners may be indicted and convicted, and may even be compelled to make the whole repairs, without prejudice, however, to the right to claim contribution against the others who are chargeable. Case of Loddon Bridge, W. Jones’ R. 273. Queen v. Duchess of Buccleugh, 1 Salk. R. 358. In the case before us, the statute has declared that a neglect of duty by those who were chargeable with the repairs for the time being, should be deemed a misdemeanor in them individually.
If it was not necessary to join a majority of directors in the indictment in the first instance, it necessarily follows that the acquittal of two, out of the three who were indicted, is no defence to the third. The two who were acquitted may not have been directors, or they may have proved that they did their duty, but could not induce the plaintiff in error and others to concur with them in providing for the necessary repairs.
The third objection is wholly untenable, especially after the acquittal of the other two defendants; and I believe it was abandoned on the argument.
The fourth objection is for a misjoinder of counts in the indictment. If there ever was any thing irt tipis, objection, it
The objection that the defendant was fined only, and that he was not also compelled to repair the road, is one which cannot be urged by the plaintiff in error, even if a judgment to repair could have been given on this conviction. The defendant may, on a writ of error, object that the punishment inflicted upon him is too great in its extent, or that it is different in form from what the law has prescribed ; but where a party is subject to two distinct and independent punishments for the same offence, if one of them is inflicted upon him by the sem tence of the court, he cannot object that the court has not gone^further and inflicted the other penalty also'. The authorities cited to this point on the argument were all cases in which the prosecutor objected that the judgment had not gone far enough; and if this judgment is reversed on that ground, we must .still go on and sentence the plaintiff in error to repair
The sixth objection is, that the indictment should have con-1 eluded contra formant statutorem, in the plural. Such a conclusion is sometimes necessary where one statute is in relation to another, as where one creates the ofience and another fixes the penalty; but where the statute creating the offence is only amended or regulated, or altered in parts thereof which do not relate to the offence or to the punishment thereof, a conclusion in the singular is proper. Here the original act alone relates to the offence, and the common law prescribes the punishment of a single misdemeanor. The act of 1805 merely changes the name of the corporation, and makes no alteration, either express or implied, as to this offence. The conclusion against the form of the statute in the singular was therefore correct.
The seventh and eighth objections are equally untenable. The indictment recites the substance of the statute, which shows it was the duty of the directors to keep the road in repair. It charges that they had notice it was out of order, were requested to repair it, and that they neglected to do so. This appears to be a sufficient averment that they all neglected to do their duty; and the jury have found that allegation true, . so far as related to the plaintiff in error.
But it is said that the penalties imposed upon the President and Directors of the Mohawk Turnpike and Bridge Company by the original act of incorporation, are not binding upon the officers of the Mohawk Turnpike Company. By a reference to the act of 1805, however, it is evident that the legislature intended to continue the old company so far as related to the
The act of March, 1829, authorizing the turnpike company to abandon that part of the road which is embraced in this indictment, cannot invalidate or authorize the reversal of a judgment which was rendered the previous year; and if I am correct in supposing that this proceeding is merely to punish the directors for a previous neglect of their official duty, the act of 1829 would not have prevented a subsequent prosecution for the offence charged in this indictment, which was committed in 1827.
The objection that the judgment is erroneous, because it is against Kane upon both counts of the indictment, might have been sustained, if a distinct punishment had been inflicted for the offence charged in each; hut even in that case, the judgment could be reversed only as the first count. That count is undoubtedly defective, because it appears by the finding of the jury, and by the statutes of April, 1805, and of April, 1807, that no such company as that described in the first count was in existence in 1827. It is, however, well settled that in criminal cases where there is a general verdict and judgment on an indictment containing several counts, it is no objection to the validity of the judgment that one or more of the counts is defective, provided there is any
It is said that the indictment does not aver that it was the duty of the president and all of the directors to keep the road in repair. In an indictment at common law against a parish, which prima facie was bound to repair, the indictment merely stated that the road was ruinous, and that such parish ought to repair, But where it was attempted to charge only a particular part of a parish or an individual, which was against common right, it was necessary to show by the indictment how the defendants were liable to repair. In this case the indictment recites the statute which makes it the duty of the president and all the directors, for the time being, to keep the road in repair, and it then charges that the defendant was one of the directors of the company. Certainly no further averment could be necessary to show whose duty it was to repair the road, and how the defendant was liable under the statute.
There is no allegation in the indictment that Kane, Boyd and Yates were the only directors of the company; and there is nothing from which it can be inferred that there was not a legal board competent to transact the corporate business of the company. It was not necessary to insert a formal averment in the indictment that the road was made and completed. The charter was to be void if the road was not completed within eight years ; but the company had a right to erect gates and to exact toll when a part only was completed. It is averred in the indictment that the company still continue to be a body corporate, and that they had erected gates and exacted toll upon the road. The legal inference therefore is, that all the requirements of the statute had been complied
The last objection is, that the judgment is erroneous, because it does not direct that the defendant, who was there present in court, should be immediately committed to jail un- . til the fine was paid. In proceedings in civil suits at common law against a defendant in an action of tort, in addition to the usual judgment for the debt or damages awarded to the plaintiff, there was a judgment that the defendant be taken until he paid a fine to the king; and in cases of misdemeanor, where a verdict might be given against him in his. absence, a capias was awarded to bring him in to receive judgment, or if he was in court, he might be committed to prison until the fine which had been imposed upon him for the offence was paid. It seems now to be well settled, that for the collection of the fine imposed upon the defendant upon such conviction, the people have the right to proceed against the property of the defendant by a levari facias, as well as against the body; and perhaps they may proceed against both at the same time. All that is necessary to insert in the judgment in relation to the execution is the award of the proper process to carry into effect the sentence of the court. If it was a matter of course to commit the party to prison immediately, to remain in execution until the fine was paid, such would be the effect of awarding process for the recovery of the fine, according to the course and practice of the court; and upon this judgment a cayffas ad satisfaciendum pro fine may properly issue to the sheriff to take the defendant, and to detain him in jail until the fine is paid. And if, as I think was the case, the public prosecutor might at the same time proceed against the property of the defendant, to collect the fine by levari facias, this judgment is sufficient to authorize the issuing of that execution also.
I think there was no error in the judgment of the court below, and that the judgment of the supreme court, affirming that judgment, should also be affirmed here. See Judson v. The State, 1 Alabama Rep. 150.
The first point made by the counsel for the plaintiff1in error is, that the indictment was bad, not
The second point urged in behalf of the plaintiff in error is, that the conviction of Kane alone was erroneous, and that the acquittal of the others extended to him. This point is a consequence of the first, and falls with it.
It was urged on behalf of the plaintiff in error, that there is a misjoinder of offences in the indictment, there being two counts against the defendants below as directors of different companies. The defendants are indicted as individuals. There is norule which forbids uniting several counts, varying inform, for the same offence. The counts in the indictment are, as they are required to be, technically, for different offences, but evidently relate to the same transaction. 1 Chitty’s Cr. L. 205.
It was also urged as a ground for reversing the judgment, that it is not alleged in the indictment that the defendants below neglected to keep the road in repair. It is a general rule that all indictments founded upon statutes must state all the circumstances which constitute the offence created by the act, so as to bring the defendant precisely within it. Nothing more is required than to state the offence according to the definition contained in the statute. 1 Chitty’s Cr. L. 231. This is done in the indictment in this case. Besides, the fact of the road having been repaired, was matter of defence for the defendant to set up, but clearly not necessary to be tiaversed by the indictment.
Another point urged on behalf of the plaintiff in error was, that the penalties prescribed in the original act incorporating the Mohawk Turnpike and Bridge Company are not binding upon the Mohawk Turnpike Company. A very cursory reading of the act of 1805 is sufficient to show that the corpora
The counsel for the plaintiff in error also contended, that the judgment of the supreme court is erroneous, upon the ground of its being rendered upon both counts. There is a difference in this respect betwen civil and criminal cases ; in criminal cases, a general judgment against the defendant is good, if there be one good count, and the reason is that in civil cases the jury find entire damages, and the court cannot apportion; but in criminal cases the court themselves regulate the severity of the sentence, and can do so according to their discretion upon those points of the indictment which are supported. 1 Chitty’s Cr. L. 205. 2 Ld. Raym. 887.
It was urged also that there is no averment in the indictment that the road was ever made and completed. The indictment most certainly bring the defendants within the liabilities of the act ; and it is true that the act of 1800 declares that the company shall be disolved, if the road be not completed within eight years. But it most assuredly is not necessary to negative every contingency, on the happening of which, by proviso in the act, the company might be dissolved. It is enough that the indictment shows that the company incorporated had been organized and gone into operation, in pursuance of the act, and that the defendants were directors, had assumed the responsibilities, and incurred the penalties prescribed by the act.
The last point made by the counsel for the plaintiff in error was, that the judgment should have been that the defendant be committed to jail. This error, if it were such, and if it lay with the plaintiff in error to urge it, most certainly would be cured by the statute of jeofails. “ No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereof be affected by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.” 2 R. S. 728.
The court being unanimously of the opinion that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.