People v. Brooks , 1 Denio 457 ( 1845 )

By the Court, Beardsley, J.

An action Avas pending before a justice, in Avhich it was laAvful for the defendant therein to make an affidavit shoAving the justice to be a material witness for him, with a view to effect a discontinuance of said cause., (Laws 1838, p. 232, § 1.) A justice of the peace is authorized to take such an affidavit. The revised statutes provide that affidavits to “ be read and used in any court of Iuav or equity, of record or not of record, Avithin this state,” may be taken before commissioners of deeds. (2 R. S. 284, § 49.) The word may, in this statute, is tantamount to shall, and made it the imperative duty of commissioners to take such affidavits. (The Mayor, &c. of New York v. Furze, 3 Hill, 612.) But by an act of 1840, the .office of commissioners of deeds was abolished, and it was provided that “ all the powers and duties of such commissioners shall hereafter be executed by the justices óf the peace, in said towns respectively.” (Laws 1840, p. 187, § 1.) In this case, therefore, the justice was not only authorized to take the affidavit, but it was bis duty to do so. This duty he neglected to perform, and for that he was indictable. (2 R. S. 696, § 38.) The language of the statute is, that the neglect of duty must be "wilful.” and this neglect was of that character. The justice knew what was asked of him, and he knew what he refused; there was nothing like surprise, inadvertence or misapprehension on his part. He refused to administer the oath, and he intended so to refuse. This was a wilful violation of duty, for “ every intentional act is necessarily a wilful one.” (Commonwealth v. Green, 1 Ashmead’s R. 299.)

That the justice believed he was not bound to take the affidavit, and acted in good faith in refusing to do so, are no defence. Ignorance of the law is no excuse, and an honest conviction that one has a right to do what the law declares to be illegal, will not make the act innocent. “ A mistake in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defence.” (4 Black. Com. 227; Rex v. Esop, 7 Carr. & Payne, 456.) ’

' By the terms of the statute a wilful neglect of duty is made • indictable; and it need not, in any other sense be charged or found to be corrupt. (The King v. Hollond, 5 Durn. & East, 623, 618.) The offence charged is not the neglect of a judicial duty, but of one purely ministerial, which the officer was absolutely bound to perform, and had no discretion or right to decline.

It is not material to decide whether the affidavit, as drawn, was sufficient for the intended purpose. That was not a question for the justice when called upon to administer the oath, nor did he put bis refusal on that ground.

He refused because, as he declared, it was his pleasure to refuse, and, as he said, he was not bound to do any thing which would oust him of his jurisdiction over the cause. He may have been ignorant of his duty, but the tenacity with which he clung to the cause is at best but equivocal evidence of good faith. But these considerations were not material to the jury, who were very properly instructed to disregard them. They might be important on an application for a pardon; and should be allowed their proper weight by the court in awarding punishment.

There was no error, and a new trial must be denied.

New trial denied.