
    Jacobs and Others v. The Commonwealth.
    June, 1830.
    Justice of Peace-Misbehavior in Office — Indictment —Allegations.—In an indictment against justices of the county court, for misbehaviour in office, it is necessary that the act imputed as misbehaviour, be distinctly and substantially charged to have been done with corrupt, partial, malicious or improper motives, and above all with knowledge that it was wrong, though there are no technical words indispensably required, in which the charge of corruption, partiality &c. shall be made.
    Same — Same—Same—Failure to Charge Scienter — Effect. — An indictment in such case, not charging the corruption, partiality &c. distinctly and substantially. and not charging the scienter; Held naught after verdict of conviction, its defects not being cured by the statute lRev Code, ch. 169, § 44.
    Error to a judgment of the circuit court of Augusta, upon an indictment against John Jacobs, L. W. Harris and *John Digges, justices of the peace for the county of Nelson, for misbe-haviour in office.
    The prosecution was commenced in the circuit court of Nelson, from which the venue was changed to the circuit court of Augusta, where the case was tried; the jury found the defendants guilty and assessed fines against them; and the court rendered judgment for the fines, and judgment also of a motion from office. Manj' objections were taken to the judgment and proceedings, in the argument here; but the main point, that on which alone the court decided the case, was, whether the acts imputed to the defendants, as laid in the indictment, amounted to any crime or mis-demeanour or misbehaviour in office?
    There were three counts in the indictment; but they were not materially different from each other, and in regard to , the points of objection to the indictment, they were all alike. The indictment charged, in substance, That William B. Jacobs, having been appointed and commissioned sheriff Of Nelson, qualified as such in the county court, on the first day of November term 1820; and he being about to nominate his deputies to the -court for its approbation, public proclamation thereof was made, and sixteen justices assembled on the bench; and then the sheriff nominated one Burks to be one of his deputies; but upon a statement made to the court, that Burks had been guilty of highly improper and corrupt conduct, while acting as a deputy sheriff of Amherst, which statement was corroborated by the admission of Burks’s counsel, that the fact charged had been proved in a trial at law, the court, after full deliberation, by a majority of twelve justices to four, rejected Burks as a deputy, and refused to enter of record, that he was a man of honesty, probity and good demeanour, the only justices' *who voted for admitting Burks as deputy, being William Digges and the defendants John Jacobs, E. W. Harris and John Digges, of whom John Jacobs was the brother of the high sheriff, and the others were relations of Burks: nevertheless the defendants, well knowing the premises, but seeking and contriving, under the colour of. their offices, to carry into effect their own private feelings and personal views, without any regard to the interests and welfare of the people of the county, or the administration of justice therein, and in despite of the fair, open and deliberate expression of sentiment, which had already been pronounced, in a full and numerous court, as aforesaid, did combine and associate to form another court for the purpose of admitting Burks to the office of deputy sheriff; and, on the following day, after he had been rejected as aforesaid, being the second day of the term, and without giving any notice to the justices who had been assembled on the preceding day, that a reconsideration of their decision was contemplated, and without receiving any new or farther evidence tending to exculpate Burks, formed a court at an early hour of the day, consisting of themselves the said defendants, and two other justices, John Mosby and R. J. Kincaid, and by the said court it was ordered to be entered of record (the defendants only voting in the affirmative) that Burks was a man of honesty, probity and good demeanour, and thereupon Burks was permitted to qualify as deputy sheriff, although the said justice Kincaid earnestly opposed the making of the said order, and two other justices who were present when the proposition was made, refused to countenance the proceeding even by their presence, and immediately withdrew. And so the indictment concluded, the defendants were guilty of misbehaviour in their office of justices of the peace.
    The cause was argued here, by Eeigh for the plaintiffs in error, and the attorney general for the commonwealth.
    
      *Beigh said, the indictment consisted of a detail of circumstances, which might afford an argument or inference of improper conduct, but it contained no direct charge of official misbehaviour: the indictment in truth, charged no offence whatever. The mere fact of these justices on one day, giving a decision different from that pronounced bj' a larger number of justices on a preceding day, was not of itself criminal in the least degree. It was a legal and valid act, and if honestly done and intended, not an improper one. And the indictment did not charge any dishonest or corrupt motive; for, certainly, the imputation to these justices, of seeking and contriving to carry into effect their own private feelings and personal views &c. did not amount to a charge of corruption ; since a justice of the peace might, in appointing or admitting to office, gratify his private feelings and personal views, and, especially, a desire to promote the welfare of the person appointed or admitted to the office (which seems tobe the very guilt imputed to these justices), without any corruption. It is no where stated in the indictment, that the justices knew that Burks was not a man of honesty, probity and good demeanour. The words “well knowing the premises,” refer to what had transpired the preceding day; and they might have known-all that, and yet have entertained the opinion that Burks was an honest man; nay, the indictment states, that they gave the same opinion the first day, which they gave on the next, and they might just as well have been prosecuted for their opinion given on the first day, as for that given on the second day. It ought to have been charged directly and positively, that they knew Burks was not an honest man. The omission to charge the scienter is a fatal defect.
    The attorney general contended, that the indictment was substantially good and sufficient; but whether it would have been so or no, upon a demurrer taken to it, he insisted, that all defects in it were cured by the verdict of conviction; and he referred to the statute, 1 Rev. Code, ch. 169, $ 44, p. 611, which provides, that “after verdict of twelve men, *no judgment on any indictment or information for felony or any other offence whatever, shall be stayed or reversed for any supposed defect or imperfection in any such indictment or information, so as the felony or offence therein charged to have been committed, be plainly and in substance set forth with convenient certainty, so as to enable the court to give judgment thereupon according to the very right of the cause; any former law, custom or usage, to the contrary notwithstanding.”
    
      
      Public Officers — Misbehavior in Office — Indictment— Allegations. — ‘ In an indictment against an officer for corrupt misbehavior inofflce.it is necessary that an act Imputed as misbehavior be distinctly and substantially charged to have been done with corrupt * * motives and, above all, with knowledge that it was wrong, though there are no technical words indispensably required in which the charge of corruption shall be made. It is otherwise, however, in neglects, and in cases where bare acts are made indictable Irrespective of intent” Lewis, P., in delivering the opinion of the court in Boyd v. Com., 77 Va. 56, quotes with approval this language from Wharton (2 Whart. Crim. Law, § 2518), and cites the principal case to sustain it.
      See also, monographic note on "Indictments, In-formations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      lndictments — Defects—Effect of Statute of Jeofails.— See, citing the principal case on this subject. Old v. Com., 18 Gratt. 930; State v. Cain, 8 W. Va. 736.
    
    
      
      See the statute, t Rev. Code, ch. 78. § 15, which provides, that no person appointed to the office of deputy sheriff, shall execute any of the duties of that office, unless the court of the county shall he of opinion, and enter of record, at the time of his appointment,"that he is a man of honesty, probity and good demeanour &c. — Note in Original Edition.
    
   BROCKI5NBROUGH, J.,

delivered the opinion of the court. The first and most important objection to the proceedings and judgment in this case, is, that the indictment is incurably defective; that it does not set forth any offence at all; and that the judgment ought to have been arrested.

It is a general rule, in indictments, that the special matter of the whole fact ought to be set forth with such certainty, that it may judicially appear to the court, that the indictors have proceeded upon sufficient premises. 1 Chitty’s C. R. 227; Hawk. P. C. B. 2, ch. 25, $ 57. But an indictment clogged with so much unnecessary matter, as to perplex and confuse the case, and to render it difficult to perceive the real charge intended to be exhibited, is highly objectionable. This indictment is obnoxious to the objections which the counsel for the plaintiffs in error has made to it. It consists of a long detail of circumstances from which the impropriety of conduct of the defendants may be inferred, rather than a direct charge of official misconduct. “The want of a direct allegation (says Hawkins, Ibid. $60,) of any thing material in the description of the substance, nature or manner of the crime, cannot be supplied by any intendment or implication whatsoever.”

What is the criminal fact with which it is intended to charge these justices? It is that, they formed a court (with the aid of two others alleged to be innocent) on the second day of the (November term &c. at which they ordered it to be entered of record, that Burks, who was nominated to *them by the high sheriff as his deputy, was a man of honesty, probity and good demeanour; and permitted him to qualify as deputy. This, of itself, so far from being a crime, was, as the law stood at that day, a legal and valid act; for the statute authorized the court of the county, whether consisting of four only, or of sixteen or any other number, to enter of record their opinion (if it be their opinion), that the person appointed a deputy sheriff is a man of honesty, probity and good de-meanour ; and then to permit him to qualify. But if they do not entertain that opinion; or if they know that he is not a man of honesty &c. and certify that he is; in that falsehood, in that corrupt conduct, consists their offence, their official misbehaviour. The scienter is a material part of the substance of this crime, of which there is no direct allegation in this indictment; and it cannot be supplied by any implication or intendment whatever. There is one part of the count, in which a scienter is laid; but the scienter of what? “The defendants well knowing the premises” &c. Bet us ascertain what were those premises. They were, that on the preceding day, the high sheriff nominated Burks as one of his deputies; that a court of sixteen justices assembled; that a statement was made that Burks had been guilty of highly improper and corrupt conduct, while acting on a former occasion as deputy sheriff, which statement was corroborated by the admission of the said Burks’s counsel, that the fact charged against him (without stating what that fact was) was proved in a trial at law; that twelve of that court refused to enter of record an opinion of his honesty &c. but that four voted in favor of Burks, three of whom were the defendants; and that they and the fourth were the relations of the high sheriff and deputy. These are the premises, which the defendants are charged with well knowing. They are not sufficient to ground a reasonable inference, that they knew that Burks was dishonest: they might not have believed the statement; they might not have thought, that the corroborating admission was of any consequence; they might have *had a better knowledge of Burks’s character, than the other twelve. But even if the inference was irresistible, that they did know, his dishonesty, it would not be sufficient; it would not supply the want of a direct allegation to that effect.

It is a well established principle, that a judicial officer cannot be prosecuted criminally, for any judgment rendered by him, however illegal, unless rendered from some motive of malice, partiality or corruption. Much less can such a prosecution be carried on, where the act done is within the pale of his lawful authority, without such corrupt motive. In indictments of this character, it is usual to charge the judgment or thing done, to be done corruptly, wickedly or maliciously. We do not say, however, that the word corruptly is a term of art, or technical term, like the words feloniously, burglariously &c. which must necessarily be used. The motive which is here alleged, namely, to carry into effect their own private feelings, and personal views without any regard to the interest, and welfare of the people, or the administration of justice, may probably be considered as a sufficient assignment of a corrupt -motive. And if the indictment had alleged, that, with that motive, the defendants had made the entry on the record, well knowing that the said Richard H. Burks was not a man of honesty, probity and good demeanour, it would have probably been sufficient without alleging, in terms, that it was done .corruptly. But the omission of the scienter is just as fatal as the omission of the word murdravit would be in an indictment for murder.

If this substantial allegation had veen made, then the circumstances so laboriously set out in the indictment, would have been evidence proper to be laid before the jury, to enable them to ascertain, whether the defendants sinned knowingly or not. But, however formidable the array of circumstances, it is not equivalent to a direct allegation.

The court is of opinion, that the indictment would have been bad on demurrer: and the majority of the court is of opinion, that the defect in the indictment is not cured by the statute of jeofails in criminal cases; the offence not being in substance set forth with convenient certainty.

*It is unnecessary to give an opinion on the other numerous objections made by the counsel for the plaintiffs in error, to the proceedings set forth in the record.

MAY, J.

The record, in this case, is so replete with error, that it matters little on what point the judgment be reversed: but I cannot concur in the opinion that it ought to have been arrested, on account of the insufficiency of the indictment. It would clearly have been bad on general demurrer; and to me it seems, that the authorities cited against it prove nothing more. Every act necessary to be charged upon the defendants, as constituting official misbe-haviour, is charged, clearly and distinctly. The defect is, that it is not alleged, that the defendants well knowing that Burks | was not a man of probity &c. did nevertheless certify that he was; and in violation of law, admitted him to qualify as deputy sheriff. But it is alleged, that he was charged with corruption in office; that this-charge, and his conduct and character, were investigated before a court of sixteen magistrates including the three defendants ;■ and that, by a vote of twelve justices to four, that court refused to make the certificate, and to allow him to qualify. The indictment then charges, that these defendants (two of them being relations of Burks, and the other a brother of the high sheriff) well knowing the premises, but seeking and contriving, under mere colour and pre-tence of their office &c. to carry into effect their own private feelings and personal views, without any regard to the interest and welfare of the people of the county, or' the administration of justice therein, and in despite of the fair, open and deliberate expression of sentiment, which had been pronounced in a full court &c. did combine and associate together, to form another court, for the purpose of admitting Burks, to qualify as deputy sheriff; and, the next day, without giving any notice of their intention, and without any new evidence, the defendants with two other justices, formed a court, at an early hour, in the morning, and caused it to be entered of record, that Burks was a person of probity *&c. and admitted him to qualify as deputy sheriff.” Ido not agree with the attorney general, that this is to be regarded as an indictment for a conspiracy ; but lam of opinion,’that (in the words of the statute) it does “plainly and in substance, set forth, with convenient certainty,” though not with technical precision, a charge, that these defendants,, with full knowledge of the unfitness and unworthiness of Burks, and of a decision to that effect by a large majority of a full court, did illegally and improperly certify, that he was a man of probity &c. and permit him to qualify as deputy sheriff, in a manner highly unbecoming their office and without regard to their duty and the public welfare; and that this charge is so stated “as to enable the court to give judgment thereupon, according to the very right of the case.” This, after verdict, would be sufficient.

Tn the opinion of MAY, J., on this point, SAUNDERS and DANIEL, J., concurred.

Judgment reversed.  