
    *Newell v. The Commonwealth.
    October Term, 1795.
    Bribery at Elections — Information — What It Mast State. — In an information against a Justice of the Peace for bribery in the election of a Clerk, it ought to be stated with certainty, that an election was holden, and that, at that election, the vote was given.
    A rule was made by the District Court of Washington, that the appellant should be summoned to the next court to shew cause, why an information should not be filed against him for bribery and corruption in his office of justice of the peace, for the county of Wythe, in voting for a clerk of the said county. The defendant appeared in his proper person, and failing to shew sufficient cause to discharge the rule, the information was ordered to be filed. The caption of the information is thus “District of Wythe, Washington and Russel.” It states, “that the office of clerk of the peace in each county, is an office of great trust and confidence touching the administration of justice, &c. and that the said office in case of vacancies, is in the disposal of the justices of the peace for the same county. That by an act of Assembly entitled an act &c. the county of Wythe was formed, and it was among other things enacted that the justices of peace to be commissioned for the said county, should meet at the house of James M’Gavock in the said county, upon the first court day after the same should take place, and having taken the oaths prescribed by law, should proceed to appoint and qualify a clerk, provided that such appointment should not be made, unless a majority of the justices were present.
    “That upon the first court day after the said county had taken place, viz. on the 25th of May 1790, at the house of James M’Gavock in the said county, a majority of the justices were present, and the said James Newell was then a justice of the peace for the said county, and was then and there present, and did then and there take the oaths of a justice of peace prescribed by law, and a certain W. Crocket and a certain Robert Crocket were then and there candidates for the office of clerk of the peace in the said county. That the said Newell not regarding the oaths of a justice of peace so by him taken &c. upon the day and year aforesaid, at the house of James M’Gavock in the county aforesaid, did unlawfully, wickedly and corrupt^' accept, receive, and take from the said W. Crocket a corrupt promise that if he the said James Newell, would then and there give his vote in favor *of him the said W. Crocket to be clerk of the peace in the said county, and if he the said W. Crocket were elected, then, he the said James Newell should as a reward for his vote, have from him the said W. Crocket one half of the profits that might accrue to him by virtue of the said office; and that he the said James Newell did then and there, acting in the capacity of a justice of peace, unlawfully, corruptly, and wickedly give his vote in favor of the said W. Crocket to be clerk of the peace in the said county, inconsideration of the said corrupt promise, so as aforesaid made by the said W. Crocket, and accepted by the said James Newell, to the great dishonor of the office of justice of the peace, against the form of the statute in such case made and provided, in open violation of the laws, and against the peace,” &c.
    On the plea of not guilty the jury found the defendant guilty, and amerced him iu the sum of £50. The defendant moved in arrest of judgment, and assigned as cause thereof, that the information concludes, that the offence was contrary to the form of the statute in that case made and provided, and in open violation of the laws, and the information cannot be maintained on either the statute, or common law of England, as the assembly of Virginia on the 19th day of December 1788, passed an act,— “entitled an act, to punish bribery and extortion” and that in the act last mentioned, only a qui tam information could be maintained. The errors being- over-ruled, judgment was entered for the ^50, for the use of the commonwealth, and the costs, from which judgment, the defendant appealed.
    Campbell for the appellant. The first exception which X shall take to the proceedings is, that it does not appear the appellant was summoned to shew cause against filing the information, in the manner required by the act of Assembly.
    This mode of proceeding, by which the party accused is deprived of a trial by the grand inquest of his country, ought to be so guarded, as to diminish as much as possible the injury which he may experience, from loosing the chance of an acquital by that tribunal. In criminal cas.es, it is not only necessary that the court should do right, but it should appear in the record of their proceedings that they have done so. Nothing is to be intended. It is not enough then, that the court directed the party to be summoned, but it should appear that he was actually summoned. It is true, the appellant is stated to have appeared, and failed to shew cause against filing the information ; but he might have been accidentally in court, and to this *circumstance, may fairly be attributed his inability to shew cause against the prosecution. It has never been decided that an appearance in criminal cases, could cure any error whatever.
    2d, This is a prosecution for bribery and corruption in the election of a clerk. I contend that the information ought to have stated, that an'election was holden. If a man be arraigned for misconduct in his official capacity, it ought to be charged, that he officially acted. Only one magistrate is stated to have qualified, and it does not even appear that a court was convened.
    3d, The offence is not laid to have been committed “within the jurisdiction of the court.” I admit, that if there be tantamount words, they will supply the want of those above mentioned. The caption of the information does not more necessarily mean the names of three counties, than it does the names of three persons. But if it do, there is no way by which to infer that the offence was committed within the jurisdiction of the court, but bjr connecting the caption with the sentence which charges the offence to have been committed at the house of James M’Gavock in the county aforesaid, which is nonsense. We cannot hunt over the intermediate parts of the information, so as to connect the above clause with the caption. There is no precedent where the want of laying a jurisdiction has been considered as fatal, in which an industrious court might not from the whole information have collected enough to remove the objection.
    Lastly, I contend that upon the merits of the case the judgment is erroneous.
    The offence charged, is either bribery, or the sale of an office. It cannot be the first, because that can be committed only by a person in á judicial capacity. 3. Inst. 145. 147. Extortion may be committed by him who acts ministerially, but bribery cannot.
    The election of a clerk,though committed! by the law to the judges, is a ministerial,, and not a judicial act. The legislature-might authorize the judges to do an act of' a ministerial nature; but it would not therefore change its nature, and become a. •judicial act.
    The information then must be supported, as an offence in the sale of an office.
    The act of Assembly against the sales of' offices, was passed in October 1792, and this prosecution was instituted in May 1791, so that the appellant cannot be convicted, under that act. The statute of Edw. 6. then must be resorted to; and if so, it is. liable to the following objection. *lst, The appellant is ordered to be cited to shew cause why an information should not be filed against him for bribery and corruption ; instead of which, he is-charged with an offence of a different sort. If it be necessary that the party accused should be cited at all, I contend that it is-the more necessary, the citation should truly state the nature of the accusation; for-o.therwise, it would rather serve to entrap-than to benefit him. The information cannot be filed without the leave of the court: but the leave granted in this case, authorised an information for one offence, and an information for a different offence-is filed; it was therefore filed without leave.
    2dly. It is determined in Salk. 411, that the stat. Edw. 6. does not extend to the-colonies.
    Marshall for the appellee.
    The first objection is, that the appellant does not appear to have been summoned. But to this, the record seems to have furnished a com-pleat answer. He is stated to have appeared, which must mean a legal appearance which it could not be unless he were summoned.
    The second objection is, that it does nofr appear that an election took place. It is stated that the appellant received the bribe, and voted for the clerk, which makes the offence compleat, tho’ the election from any cause whatever did not take place. The information states that he accepted a corrupt promise, &c. and acting as a justice of the peace did give his vote. He must then have been in court acting in his official capacity.
    The third objection is, that no jurisdiction is laid. It is contended that the names-of the counties mentioned in the caption, may as well mean men, as counties. But three men cannot make a district; this would be absurd. The information charges, that by law, the.justices were to meet at the house of James M’Gavock in the county of Wythe; that they did meet at that house in the said county of Wythe, and that then- and there the appellant committed the offence. It follows, that the house was in the countjr of Wythe, and Wythe is said to be one of the counties composing the district. The offence then must necessarily have been committed within the jurisdiction of the court. Besides, if this be error, it is cured by the act of Jeofails. In England it is determined, that the statutes of Jeofails do not extend to criminal cases, because the first statute being confined to civil cases, the judges construed all those which followed, in the same manner. It is otherwise with respect to our act of Jeofails, which is not confined to civil cases by any expressions which the legislature have used.
    *Upon the last objection I would observe, that whatever may have been the English decisions concerning the operation of the statute of Edw. VI. in the colonies, the convention in this state, by ■ an ordinance passed in the year 1776, adopted all the English statutes prior to the 4th James I. not of a local nature. This is certainly not local, since it applies to offices Which are as well known here as in England; and if the act of selling them be •criminal there, it is equally criminal here.
    Campbell in reply.
    I have contended that it should appear that the appellant was cited. 2 Haw. P. C. 263, may be mentioned against me. To this I answer, that the recognizance there spoken of, was not essential to the defence of the accused; a notice of the intended prosecution was. — The same answer may be given to what is said in the same book .page 270; the oath was required for greater solemnity, but was not necessary to the defence of the accused.
    2d point. 2 Hawk. P. C. 225, shews the certainty necessary in an information. The information states that a majority of the justices were present, but not that they held a court, and unless they did so, the justices might have been present on other business, and not in their official capacities.
    3d point. The caption is no part of the indictment, 2 Hawk. P. C. 165 to 169. It cannot therefore be referred to, to shew the place at which the offence was committed, tho’ it may be, for the purpose of shewing, that the court was holden within the extent of the commission.
    4th point. If the stat. of Edw. VI. were adopted by the ordinance of Convention, yet that ordinance was repealed by the act passed in December 1782, which declares, that no English statute or act of parliament shall have any force in this commonwealth.
    
      
      See monographic note on “Elections" appended to West v. Ferguson, 16 Gratt. 270.
    
   ROANE, J.

Several objections were made at the bar tq the information and proceedings in this case. As there is one which I deem substantial, it will be unnecessary to take notice of the others. It is not alleged in the information that an election was holden, or that at that election, the vote was given. The prosecution, as appears by the order for a summons, and from the whole tenor of the proceedings, was for bribery in the election of a clerk. But is the offence properly set forth? Though I am well satisfied that an election took place, and that upon such election a corrupt vote was given, yet as implications can never without danger be admitted in criminal prosecutions, whether they be by information or indictment, I *cannot judicially know the fact unless it be certainly alleged.

It is not certainly stated that the other judges were sworn, that an election was holden, or that the vote was given at that election. If the information had been sufficiently particular in these respects, the validity of the election would have been immaterial. But the vote, from all that appears in this information, might have been a solitary' one by Newell, and not social with his companions; and I hold it to be exceedingly clear, that wherever an election depends upon the votes of a particular body composed of many individuals, _ it should as plainly appear that an election was holden by that body, as that the individual accused voted at it, for the statute against the sale of offices will not in -such a case apply' to an individual exercise of the power of appointing. If the appellant gave a solitary vote, it was not an offence within the meaning, because it could not be within the mischief of the statute, for such a vote could not confer even a colorable title to the office. Neither do I conceive that the case would in this respect be different at common law, supposing that a promise of a reward would constitute the offence at common law. I am therefore of opinion that the offence is not sufficiently set out in this information, to authorise a judgment either under the statute, or at the common law. The judgment I think, ought to be reversed.

CARRINGTON J.

I am clear that the information wants that precision necessary in all criminal prosecutions. We can presume nothing-, and since it was essential that an election should have been holden, and the vote then given, it ought to have been clearly alleged, and cannot be intended. I agree with my brother Roane, that the information is insufficient, and ought to be quashed.

LYONS J.

I concur in opinion with the other judges, that the information has not certainty enough in describing the offence. It ought to appear that the offence existed otherwise than in intention: and that it was actually carried into execution, which could only be, by an election having been holden, and the corrupt vote then given.

The PRESIDENT. — We all agree that there is not sufficient certainty in the information in describing the offence. It is not sufficiently alleged that a majority of justices qualified; that a court was holden, tnat an election took place, and that the vote was then given.

Judgment reversed with costs, and the information quashed.  