State v. Hoit

23 N.H. 355 | Superior Court of New Hampshire | 1851

Eastman, J.

The respondents, in this ease, move in arrest of judgment upon three grounds. The first is, that the indictment does not allege that the respondents acted as overseers of the poor, in the town, or accepted the office ; and that it does not allege, that it was the duty of the respondents to relieve, or maintain the child.

The indictment sets forth, that the respondents, on the twenty-fifth day of January, last past, were and ever since have been, and still are, overseers of the poor, in the town. The fact that they were on that day, the day of the alleged offence, overseers of the poor, pre-supposes an election, and acceptance of the office, and also implies action by them, if action be necessary. The indictment also alleges, in substance, that the respondents, disregarding their duty as overseers of the poor, did neglect and refuse to relieve and maintain the pauper. Although the offence is not affirmatively set forth in so full a manner as the forms prescribe — the election, acceptance and action in office by the respondents, and their duty to relieve and maintain the child— yet, after verdict, these will be presumed to'have been sufficiently proved, under the general allegations of the indictment. Unless the jury had been satisfied, from the evidence before them, that the respondents accepted the office, and acted as overseers of the poor of the town, unless they were also satisfied that it was the duty of the respondents to relieve, and maintain the child, they could not have found a verdict of guilty.

The second ground relied upon, is, that no crime is sufficiently alleged in the bill; and this objection, we think is well taken. The very essence of the crime is the wrong intent with which the act is done ; and the gist of an indictment consists in the charge of criminal intont. In order to convict the respondents it was necessary to allege, and prove, that they were overseers of the poor of the town, that it was their duty to relieve the pauper, and that they intentionally, and wilfully neglected so to do. The respondents are punishable by virtue of the statute. That provides, that if any public officer shall wilfully neglect, any duty imposed upon him by law, and no penalty shall be prescribed by statute for such neglect, such public officer, guilty of such neglect, shall forfeit and pay afine, &c. Rev. Stat., ch. 225, § 20. Overseers of the poor, are public officers within the meaning of the statute, and there is no special penal statute particularly applicable to them for any misdemeanors in office; and hence they come under the general one above quoted. By that statute, it is clearly intended that the neglect, in order to be criminally punishable, must be wilful. There must be a criminal intent, a wilful wrong done, before punishment can follow. Overseers of the poor may mistake their duty ; they may err in judgment; they may proceed illegally; for all which they may be liable in a civil action ; but before they can be convicted as criminals, they must be guilty of a wrong intent.

In the indictment before us, the overseers might be guilty of all that is charged in the bill, and still innocent of any wilful neglect of duty. They might neglect and refuse to afford the support, from the belief that the child was not a pauper, or from a mistaken idea of their duty, in furnishing relief. This course they might have pursued, and still have been guilty of no criminal intent, or wilful wrong. This indictment is, therefore, deficient, There is no distinct and legal crime sufficiently described in the bill.

Having arrived at the conclusion stated, upon the second position of the respondents, it would not, in disposing of the case, be necessary to make any decision upon the last point. But as we entertain no doubt in regard to the law upon the subject, we will state briefly, that, in our opinion, the position is incorrect. Mandamus may be a concurrent remedy, but that is the most that can be said in regard to it. The clause of the statute, which we have cited, shows, that overseers of the poor may be punished by fine, for any wilful neglect of duty. Rev. Stat., ch. 225, § 20. And by another enactment it is provided, that “ all fines imposed by any statute, may be recovered by information or indictment, if no other mode of recovery is specially provided.” Rev. Stat., ch. 211, § 4; Otis v. Strafford, 10 N. H. Rep., 355; State v. Fletcher, 5 N. H. Rep., 257. No other mode is specially provided for offences of this kind; and hence it follows that an indictment will lie for any wilful neglect of duty on the part of overseers of the poor.

Judgment arrested.