State v. Fitts , 44 N.H. 621 ( 1860 )

Bartlett, J.

The first section of chapter 2584 of our Pamphlet Laws provides that every town shall raise money, by taxation or otherwise, and if necessary apply the same, under the direction of the selectmen, or of a committee chosen at any meeting duly held for that purpose, for the aid of the wife, &c., of any person enlisted and mustered into the military service of the United States, who was at the time of his enlistment an inhabitant of such towm, if certain circumstances, set forth in the section, exist.

The indictment charges the respondents, selectmen of Dorchester, with willful neglect to raise and apply any money for the aid of the wife and children of Carey Hobbs, a soldier, enlisted and mustered into the service of the United States, who at the time of his enlistment was an inhabitant of Dorchester.

Whatever maybe the duties of selectmen where their town raises no money under the provisions of this act, it can not be their duty to raise money under the act, if a sufficient amount has been raised by the town ; nor can it be their duty to apply money for the aid of those dependent on soldiers, under this statute, if there is in their town a committee for that purpose, legally chosen, and qualified under the provisions of the act. If no duty to raise or apply money under the provisions of that part of the statute on which the indictment is founded devolved upon the respondents, they can not be punishable for willful neglect so to raise and apply money. The offense attempted to be charged here is a willful neglect of official duty, and all the facts essential to impose the duty upon them should be stated. The indictment fails to show a state of facts that made it the duty of these respondents to raise and apply money for the aid of Sarah D. Hobbs and her children. This defect is not cured by the allegation that the respondents “ as such selectmen were bound by law to raise a sum of money sufficient for the purpose and apply the same for the aid and relief of the said Sarah,” &e. When the facts are ascertained the law determines whether the duty existed, and unless the duty existed the respondents could not be guilty of any neglect that would subject them to punishment by the criminal law.

“The indictment must contain a complete description of such facts and circumstances as will constitute the crime ; a statement of a legal result [merely] is bad.” 1 Ch. Cr. Law 228*; State v. Beasom, 40 N. H. 374; State v. Scammon, 22 N. H. 46 ; State v. Barrett, 42 N. H. 470. All the facts stated in this indictment may be true, and yet the respondents may be innocent of any neglect of duty under the statute. State v. Hoit, 23 N. H. 359.

Exception to the ruling of the court at the trial term must be sustained, and

The indictment must he quashed.