15 Wend. 277 | N.Y. Sup. Ct. | 1836
By the Court,
There is nothing in the objection that justices of the peace are not liable to be indicted for misbehavior in their offices. Whenever they act partially or oppressively, from a malicious or corrupt motive, they may be punished criminally. Discharging an offender without requiring sufficient sureties, when it is done with intent to pervert the course of law and justice, is clearly an indictable of-fence. Russell on Crimes, 213, 214. 4 Black. Comm. 141. 6 Mod. 96. 1 Burr. 556. 3 id. 1317,1716,1786. 1 Wils. 7. 1 T. R. 692. 4 id. 451. 2 Chit. Cr. L. 237, n. (e). Doug. 426. 2 T. R. 190, 12 Johns. R. 356. 2 Bay’s (S.C.) R. 1. Precedents of informations and indictments against justices ; 2 Chit. Cr. L. 236 to 255; Hand’s Cr. Prac. 97 to 130. It is said that most of the cases in England arose upon informations filed by the attorney general, or the master of the crown office, and not upon indictments. There are cases and precedents in both forms ; but the suggestion that many of the cases arose upon informations, only proves that this has been the most usual course of proceeding in England—not that magistrates are exempt from indictment for malversation in their offices. Informations and indictments are only different modes of prosecution for criminal offences ; and the only important difference between them is, that the one is the- mere allegation of the attorney general or some other public officer, and the other is found by the oaths of twelve men. In England, criminal informations can only be filed for misdemeanors, and in this state they are abolished. Hawk. b. 2, c. 26, § 1,4. Hand’s Cr. Prac. 1, 2. 2 Chit. Cr.L. 161, 165. Constitution of N.Y., art. 7, § 7. It is unnecessary to inquire whether justices of the peace are subject to impeachment; for if that position could be maintained, they would still be liable to indictment and punishment according to law. Const, art. 5, § 2. If, as has been suggested, the court below, in arresting the judgment, proceeded on the ground that justices of the peace are not liable to indictment for corrupt mal-con
The first objection urged against the form of the indictment is, that it does not appear that Goff\ who was let to bail, was charged with any criminal offence before the justice; and if the complaint was defective, it is said that the justice could not be guilty of a crime in suffering the accused to go at large. The complaint made by Cadwell against Goff was under 2 R. S. 677, <§> 53, which provides, that “ Every person who, with intent to cheat or defraud another, shall designedly, by color of any false tbken or writing, or by any other false pretence, obtain the signature of any person to any written instrument,” shall, on conviction, be punished by fine or imprisonment, or both. The substance of the statement in the indictment is, that Cadioell, upon his oath, entered a complaint before the justice, charging Goff with having falsely and fraudulently, by means of certain false pretences in the said complaint mentioned, contrary to the form of the act, &c., induced and procured him to endorse or sign as surety for Goff, a promissory note for the payment of §1200; whereupon the justice caused Goff to be arrested and brought before him; and after examination, declared the complaint sufficiently made out, and required Goff to find sureties to appear at the next court of general sessions to answer the complaint. If this were an indictment against Goff for the cheat, it would clearly be bad. To say nothing of the fact that the note is neither set out nor described, “ the intent to cheat or defraud,” which constitutes the crime, is not averred. Where an act becomes criminal on account of the intent with which it was committed, the particular intention must be averred and proved, 1 Chit. Cr. L. 245, Stark. Crim. Pl. 198; but the complaint against Goff is here only set forth by way of inducement to the charge against the justice ; and I think the indictment was in this respect sufficient. It was not necessary to state the offence of Goff in the same formal manner as would be required in an indictment aginst him for the cheat.
If Goff was in legal custody, it only remains to be considered whether the indictment sufficiently charges a crime upon the defendant, in permitting him to go at large. As the defendant was found guilty upon the whole indictment, it will be necessary to examine both counts ; for if either was sufficient, judgment should have been rendered against him. In England, where death is written on the front of all their criminal jurisprudence, judges, in favor of life, have listened to nice and technical objections in relation to the forms of indictment, and have not unfrequently gone so far as, to frustrate the ends of justice, and bring reproach on the administration of the laws. In this state, where a milder system prevails, there is no reason why we should follow in their track. Indeed, it has been foi^idden by law. 2 R. S. 728, § 52. The 1st, 3d and 4th subdivision of this section are new, having never been incorporated in our criminal code until the late revision. See Revisers’ notes. “ No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be affected,” by reason of several specified omissions, or, “ 4. by reason of any other defect or imperfection in mat
Goff was charged with a misdemeanor, and might be let to bail by the justice. 2 R. S. 709, 710, § 25, 29. The only offence of which the justice could have been guilty, was that of discharging Goff without taking sufficient sureties, or requiring bail in a sufficient sum to secure his personal appearance to answer any bill that might be found against him by the grand jury ; and even such an act would not be criminal, unless it were done from a. corrupt motive and with intent to-pervert the course of justice. Indictments for such offences,as appears by the precedents, charge among other things, that the defendant, intending to pervert the due course of law and justice, did, under color, &,c. unlawfully, willfuly and-corruptly procure the prisoner to be discharged, and to escape and go at large, without taking sufficient sureties for his appearance. Hand’s Cr. Prac. 115. 2 Chit. Cr. L. 244. The first count of this indictment, after stating the arrest and examination of Goff, and the order that he should find sureties-for his appearance in the sum of ^500, charges that the de—
The second count is not subject to all the objections which have*been mentioned in relation to the first. After stating the arrest and examination of Goff, and that he was required to find sureties in the sum of $500, it charges that the defendant, “ fraudulently, in violation of his duty as a justice of the peace, and with a design corruptly, to aid and assist Goff in escaping from a trial and conviction, ” did direct and authorize Goff to be discharged from arrest, upon his finding sureties “ in a small and trifling sum of money, to wit, in the sum, of fifty dollarsand then shows that he was discharged accordingly. The averment that the act was done “ with a design corruptly to aid and assist” Goff “ in escaping from a trial and conviction,” may be equivalent to the averment in the precedents, that the act was done corruptly, with intent to pervert the due course of law and justice; and I think this allegation sufficient. But in other respects this count is substantially like the first. It does not directly and positively charge that Goff was discharged without taking sufficient sureties, or sureties in a sufficient amount, for his appearance.
I think the indictment was substantially defective, and that the judgment of the court below should be affirmed.
Judgment affirmed.