The People vs. John Coon, 15 Wend. 277

By the Court, Bronson, J. 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-conduct in office, they clearly mistook the law of the land. But the question still remains, whether the indictment was sufficient in point of form.

If it be defective, the judgment must be affirmed, although it may be for a different reason from that which guided the court of general sessions. 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.

Proceedings before magistrates for the arrest and commitment 0ffen(jers are frequently deficient in point of technical form ; but they should not be regarded as utterly void, where enough appears to show that a crime has probably been committed. In this case it may be presumed that the district attorney, in setting out the matter of inducement, followed the complaint which had been drawn up by the justice himself, and the warrant which he issued for the arrest of Goff.

The justice treated it as a criminal charge, and ordered Goff to find sureties to answer at the sessions; and if he afterwards aided the escape by accepting insufficient bail, he ought not now to be heard with much favor, when he seeks to shield himself by alleging that his own acts in taking the complaint and issuing the warrant were illegal and voi'd. If they were not utterly void, he cannot protect himself by this objection. It is not necessary that the complaint or the warrant for the arrest of offenders, should be drawn up in the technical forms required in indictments and informations. 1 Chitty’s Cr.

Law, 40, 41. 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 ters of form, which shall not tend to the prejudice ofthedefendant.” The statute does not extend to any matter of substance, nor does it cure such defects “ in matters of form” as may “ tend to the prejudice of the defendant.” It must always be important to the accused that the indictment should contain a plain and certain description of the crime imputed to him, and of the facts and circumstances which constitute the offence; and that these matters should be directly and positively alleged, without inconsistency or repugnancy.

If so much as this be not required, the party may be prejudiced by the finding of a bill when there was no offence ; he cannot know with certainty vi'hat he is called upon to answer, and, in case of conviction or acquittal, may not be able to protect himself against further prosecution. Without such a description of the offence, it will not appear that the jury were warranted in their conclusion of “ guilty” or “ not guilty,” upon the premises delivered to them ; and the court may be unable to apply the punishment which the law has prescribed for the particular transgression imputed to the defendant. I Chit. Cr.

L. 169. Cowp. 682. 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— fendant, afterwards and on the same Any,” fraudulently, corrupHy^ and in violation of his duty as such justice of the peace as aforesaid,did direct and authorize the said AmariahW.

Goff to be discharged from his arrest aforesaid,” upon his finding sureties for his appearance, “in a small and trifling sum of money, to wit, in the sum of fifty dollarsand did then and there cause and procure Goff to be discharged from the arrest, and did then and there receive and take from Goff a recognizance, with sureties “ in the small and trifling sum of fifty dollars;” whereupon the prisoner escaped, &c. “ Fraudulently,”-as used in this count, does not seem to be an appropriate word ; and the most that can be said of it is, that it will do no harm.

The allegation that the act was done by the defendant “in violation of his duty,” can amount to nothing by way of making out a criminal offence. The indictment must show how or in what particular manner the defendant violated his duty; and without doing so, the general allegation can be of no avail. “ Corruptly” is the only important word in that part of the count which goes to characterize the act; and I doubt whether this was sufficient without an averment that the act was done with intent to pervert the due course of law and justice. But the count is clearly bad upon another ground.

It does not state that Goff was discharged without taking sufficient sureties, or sureties in a sufficient sum for his appearance. The fact that the justice at first required bail in the sum of $500, and afterwards reduced the amount to $50, does not necessarily prove guilt.

It is not unusual for the magistrate to modify the amount of bail which he may have required in the first instance, and accept of sureties in a smaller sum ; and although the change in this case was so great, and the sum ultimately required was so inadequate, as to furnish a very strong presumption of criminal misconduct on the part of the justice, still this was only evidence, more or less conclusive, to establish a particular fact, which should have been charged in the indictment.

The fact that the justice did not take sufficient sureties is not directly and positively charged, and can only be made out by argument and inference. The words “ small and trifling,” as applied to the sum in which Goff was ultimately required to find sureties, are not equivalent to the allegation that he was discharged without finding sufficient sureties.

The words seem here to have been used by way of comparison or contrast with the large sum of $500, in which sureties were at first required, and as a part of the argument to prove the defendant’s guilt; and, at the most, this only amounts to evidence of a fact, when the fact itself should have been alleged. 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.