State v. Coon ( 1869 )

By the Gourt

Gilexllan Ch. J.

This is an indictment against the defendant for “ wilfully neglecting to perform his duty as a justice of the peace, and for misbehavior in office as a justice of the peace.” The specific acts charged are, in substance, that the defendant having' in his possession, as justice of the peace, sixty dollars and twenty cents, received by him in satisfaction of a judgment recovered before him by one Martin Klein, he did “ wilfully, corruptly and fraudulently withhold it ” from said Klein ; that Klein having called on him, and made i/nguvry of Mm about the said judgment, he “ wilfully and corruptly, and with intent to injure and defraud the said Martin Klein,” withheld from him the knowledge that the-judgment had-been satisfied, and neglected to pay over to him the amount received in satisfaction of the judgment, and “ then and there wilfully and corruptly advised the said Martin Klein to sell the said judgment,” and that afterwards he paid of the money so received, to one J. A. Kennedy, fifty-one dollars, and did then and there wilfully and corruptly reserve to himself the remainder of said judgment money, amounting to nine dollars and twenty cents, “ with intent to injure and defraud the said Martin Klein.” The defendant interposed a demurrer, stating several grounds, only two of which we find it necessary to notice.

These are, that if the indictment alleges any offense at all, it alleges two, and that the facts set forth do not constitute a public offense. We think the indictment attempts to set forth two or more distinct offenses, one of omission, in neglecting to do something which the indictment assumes that it was-his official duty to do, and one, if not several of commission, for doing what it was his official duty not to do.

It sets forth two transactions, one between defendant and Klein, and one between him and Kennedy. In this respect the indictment, if it were free from other objections, would be bad. But .we think the indictment does not show any crime to have been committed.

To charge an offense for neglecting to do any official act, the indictment must clearly set forth enough to show that tlie duty of doing it is imposed on the officer.

It is a duty of the justice of the peace, to whom money is paid upon a judgment before him, to pay it to the party entitled, upon a demand. There can be no liability, either civil or criminal, for neglecting to pay it over until a demand ; no demand is alleged in the indictment. Nor can there be any liability, either civil or criminal, for neglecting to inform the party of any fact respecting the judgment, until he is asked for such information. The indictment states that Klein' made inquiry of defendant about the judgment. What the inquiry was, and whether truly answered, is not stated.

The defendant could not, in his official character, advise Klein to sell the judgment. It is not his official duty to give any advice on such matters.' A party has no right to ask it, nor rely upon it, except as he would ask the advice of a private person.

As to the payment to Kennedy, and the retaining, by defendant, of nine dollars and twenty cents of the money received on the judgment, it is not shown that the payment to Kennedy was wrongful, nor that the retaining of that amount was wrongful. IIow much of the sixty dollars and twenty cents was for damages, and how much for costs, is not stated, nor is it stated that at that time any demand was made for the amount which Klein or Kennedy had the right to receive.

The indictment shows conduct on the part of defendant, which might, under some circumstances, be improper, but shows no facts to make his conduct a criminal offense.

The judgment is reversed.