1 How. Pr. (n.s.) 366 | New York Court of Sessions | 1885
Whether the defendant was chamberlain de jure or de facto was unimportant. He was liable to indictment if he assumed to perform the duties of the office under color of title. Bishop says : “ In the actual affairs of government, a man sometimes holds an office to which he has not been duly appointed, but if he does the duties of it under color of title he is called an officer defacto and his official acts are binding on third persons, though they are said not to be valid in his own favor. One duly appointed and commissioned serving in the office, is called an officer de jure. Mow clearly, an officer defacto indicted for malfeasance in office cannot object that he is not such de jure, because his acting in the office estops him to deny his right to it. And he is an officer liable to punishment, within the statute against embezzlement.” 1 Bish. on Crim. Law, § 464, 7th ed. and numerous cases cited ; also 2 Bish. on Crim. Law, § 392. With respect to the other points, I think the district attorney might have framed the indictment under either section 470 or section 528. An illegal act frequently offends against the provisions of two or more statutes, and a prosecution under any one of them is proper. Commonwealth v. McConnell, 11 Gray, 204; Commonwealth v. Trickey, 13 Allen, 559; 1 Bish. on Crim. Law, § 778, 7th ed. There is, however, a marked distinction between the two sections, under section 528, the important element of the offense consists in “ the intent to deprive or defraud the
More must be proven against the defendant to convict him under the pending indictment, than if on trial under section 470.
It was not necessary to follow the charter of the city, as it could not have been intended to have it interfere with the general statute of the State, and full effect may be given to the charter provision, without trenching upon the statute making certain acts like the present charge, of the city chamberlain, a felony.
Motion denied.