
    Harvey B. Hall v. The People.
    
      Evidence: Public records. Writings are not admissible in evidence as public records, without proof of their official character. The recitals, contained in them of the character of the officers whose acts they arc offered to prove, are not evidence for such purpose.
    
      Variance. In proceedings under the statute to remove a public officer upon .charges, evidence of acts performed by the accused as “Moderator of School District No. One,” is not admissible to prove a charge against-him as “Moderator of School District No. Two ;” and when on the trial of an information for falsely assuming to act as Moderator of School District No. One, evidence had been produced of the proceedings before the Township Board to remove him upon charges recorded against him as Moderator of School District No. Two, it is not admissible to show that the record was a mistake, and that the charges were actually preferred against him as Moderator of No. One.
    
      Criminal law: Intent: Construction of Comp. X., § 5837. The Btatufce authorizing a criminal prosecution against a person taking upon himself to officiate in an office or place of authority, was not intended to apply to a case where, in good faith, and during a real controversy as to the title, the accused continues to act in an office to which he has been chosen.
    
      Heard October 4.
    
    
      Decided October 11.
    
    Error to Calhoun Circuit.
    The plaintiff in error was charged upon the information of the Prosecuting Attorney of Calhoun County that he, “on the 18th day of December, in the year one thousand eight hundred and sixty-seven, at the township of Sheridan, in the county of Calhoun aforesaid, did falsely take upon himself to act as.Moderator, and in the office of Moderator of 'School District No. One of said township of Sheridan, said office of Moderator being an office and place of authority, contrary to the form of the statute,” etc. The information contained a second count, charging the same offense, with a difference only as to the time, which was alleged to he on the second day of December, in the year one thousand eight hundred and sixty-seven, and from said day until the first day of February, in the year one thousand eight hundred and sixty-eight, and on each and every one of said days.-
    On the trial, the Prosecuting Attorney having offered evidence tending to show that defendant was Moderator and acted as such of School District No. One in Sheridan in the year 1867, and that a movement was made by the Town Board in November of that year to displace him, produced a record book, and gave evidence tending to show it to be the public record book of the township of Sheridan, and offered to read so much of the same in evidence as referred to the movement of said Board in respect to the removal of the defendant from said office of Moderator. The complaint considered by the Township Board is entered on the book as the “Complaint against Harvey B. Hall, Moderator of District No. Two, for illegal use of public money.”
    To the reading of the same in evidence, the defendant objected on the ground that the same was irrelevant to the issue, and incompetent testimony; that the proceedings did not appear to be founded on any complaint against the defendant as Moderator of School District No. One of Sheridan; that the said record did not appear to be a record of any legal proceeding against the defendant as Moderator of District No. One, nor against the Moderator of School District No. One of Sheridan.
    Thereupon, the plaintiff, for the purpose of explaining the said record, recalled David Verplank, by whom he proposed to prove that he made a complaint against defendant, on which he was brought before the Town Board of Sheridan,'and to whom he put the following question, to wit: Did you make a complaint against, the defendant, on which he was brought before the Town Board of Sheridan ?
    It being admitted that said complaint, if any, was in writing, the defendant objected to the introduction of the evidence, on the ground that the same was incompetent testimony, and not the best evidence, but the Circuit Judge overruled the objection, and allowed the evidence to be admitted as preliminary and the witness answered “ Yes ;” to which decision of the said Circuit Judge the defendant, excepted. The counsel for the plaintiff for the same purpose propounded the following question to said witness: In your complaint did you complain of defendant as Moderator of' School District No. One, or Two ? To which question, and the introduction of the evidence, the defendant objected on the same ground. The Circuit Judge overruled the objection, and admitted the evidence, aud the witness answered, “District No. One;” to which decision of the said Circuit Judge the defendant excepted.
    ' The Circuit Judge charged the jury:—
    “That it is for the jury to say, under the instruction of the CoUrt as to the law, whether defendant acted against the law in assuming to act as Moderator of District No. One. Where a man commits an unlawful act, unaccompanied by any circumstance justifying its commission, it is a presumption of law that he has acted advisedly and with intent to produce the consequences which have ensued. That the prosecution had endeavored to show that defendant once held the office of Moderator and was removed, and that to support it, various documents had been introduced. That the record stands here as conclusive evidence of all it contains. It is for you to determine whether he gave the notice; if you believe he gave the notice, it would be one act within the statute. There is proof before you going to show that on the 14th of December he appeared and presided. If you believe he presided, then you have-another act for which he would be responsible within the-statute. It is claimed that the party should be shown to act with inteut to act falsely. If he acted without authority, then the presumption of law is that he intended to act falsely.”
    To which charge of the Circuit Judge the defendant' excepted. The jury found the defendant guilty, and he brings the cause into this Court by writ of^ error.
    
      Thomas G. Pray, for plaintiff in error.
    
      Dwight May, Attorney General, for defendant in error.
   Graves, J.

The plaintiff in error was charged with having falsely taken upon himself to act as Moderator of School District No. One of the Township of Sheridan, and, on information against him for such offense, was convicted in the Court below. On the trial, the Prosecuting Attorney having given evidence tending to show that Hall had been Moderator of the District, and that a movement was made to remove him from the office, sought to establish the charge set forth in the information by proof that the Township Board removed him and that he thereafter assumed to act as though still in office. To show the removal from office, as claimed by the People, certain writings purporting to be the record of the proceedings of the Board in the case, were offered in evidence by the Prosecuting Attorney.

This evidence was admitted against an objection by Hall that it was irrelevant and incompetent, as the Prosecuting Attorney had already submitted evidence tending to show that Hall had been made Moderator for a term covering the time when the acts of usurpation were alleged to have occurred; it was certainly pertinent and necessary for the People to show, if they could, that his official life had been legally cut off before those acts were done, and it was to meet this requirement of the case that the proceedings of the Board for his removal were offered and admitted in evidence.

But the objection that these writings were incompetent was a very different one. It is certainly incontestable that they could not be used as evidence without proof of the official character of the Board or of its members. In the absence of such proof they could possess no legal value as evidence of judicial action, and it does not appear by the bill of exceptions, nor is it pretended, that any evidence was given of such official character, unless certain recitals themselves contained in the papers, should be so considered. The difficulty here noticed being observed on the argument by the Attorney General, he suggested, but without insisting upon it very strongly, that such recitals might be treated as evidence of the official character of the persons who were said to have composed the Board. But this position is certainly untenable. These writings could not be the medium of proof of a fact upon which their own validity as evidence depended.

So long as no evidence appeared, aside from the contents of the papers, to show that the writings themselves were official memorials of the doings of the proper township officers, the papers were devoid of value as instruments of evidence and plainly incompetent to prove their own authenticity. The admission, therefore, of these papers was improper.

As this objection, however, may be avoided on another trial it is necessary to notice other questions presented by the record.

It appears from the proceedings just alluded to that the complaint for the removal of Hall was in the following terms: — “ Complaint against Harvey B. Hall, Moderator of Dis. No. Two, for illegal use of public money.” It also appears that elsewhere throughout the proceedings and in the supposed judgment for Hall’s removal, the District is described as Number “One” and Hall as Moderator of District Number “One.” The information also, as already stated, charged Hall with falsely taking upon himself to act as Moderator of District Number “ One.”

Since the proceedings for Hall’s removal indicate no other charge against him than that of falsely taking upon himself to act as Moderator of District Number Two, it must be assumed that it was upon that charge that the Board proceeded to trial and judgment. If that course was indeed pursued, I think it was a fatal error in the proceedings.

Upon a charge against him as Moderator in one District he could not be tried as a delinquent officer in another, and thereupon convicted and ousted from office in the latter. No admissible disregard of mere forms and technical methods in such cases can justify a departure from substantial requirements, and it cannot be denied, I think, that in a proceeding to remove a man from office, the trial, and judgment of removal, if one be rendered, must relate to the same office specified in the charge or complaint. The proceeding to remove a district officer for illegally using or disposing of the public money is intended to be summary, but this circumstance furnishes no reason for disregarding the ordinary safeguards for property and reputation which the law recognizes • as needful or appropriate.

While an orderly and legal inquisition and judgment against a man upon a ground like that urged against Hall, must bear hardly against his reputation and standing in society, a mere trial cannot fail to wound his sensibilities unless he is lost to all self-respect.

Every consideration re-inforces the opinion that in such a case the law should not overlook an irregularity like that in question.—Rogers v. Jones, 5 Dowl. & Ryl., 268, 272: 3 Barn. & Cres., 409 s. c.

The Prosecuting Attorney endeavored to remedy the difficulty. He was allowed, against an objection of the defendant, to show by a witness that the complaint, as made to the Township Board, described Hall as Moderator of District Number One. I think the admission of this evidence was erroneous. It was in direct contradiction of the writings which the People had already produced in evidence as a record of the proceedings of the Board, and it was an attempt to prove by parol a fact which was required, as I think, to be perpetuated and shown by writing. If a mistake existed in the record of the proceedings, it may have been open to correction. But it was not competent for the People to introduce the record as it was, and then contradict it by parol testimony.

That the imputed action of the Board was in its nature judicial and required to be in writing, will hardly be doubted. — Meeker v. Van Rensselaer, 15 Wend. R., 397, 399; Van Wormer v. Mayor of Albany, Id., 262, 265; Fisher v. Beeker, Brayt., 75; Bridgett v. Coyney, 1 Man. & Ryl., 211, 216; Rogers v. Jones, before cited. And certainly where a trial and adjudication are liable to be attended by such serious consequences, public and private, as may naturally follow a proceeding like that in question, the reasons for requiring a record are irresistible.

It was stated in argument that even if the proceedings for the removal of Hall, which were given in evidence, were incompetent to prove such removal, the plaintiff in error was nevertheless shown to have admitted his removal in a notice drawn by him in his assumed capacity of Moderator, for a special meeting. But this view cannot be maintained. If a removal by the Board, which would necessarily presuppose an adjudication, could be considered provable by an admission of the party in that way, ■ a point not now determined, still the notice itself will not bear the construction put upon it. While it implies that some action had been taken by the Board with a view to his removal, it also clearly implies that the validity of that action was earnestly questioned, and had not been accepted by Hall as depriving him of the office. Standing by itself, if adopted, to prove anything on the subject, it tended more strongly to prove that in fact he continued in office, than that he had been turned out.

It is impossible to read the evidence placed before the jury without concluding that Hall regarded the proceedings, whatever they were, for his removal, as ineffectual to impair his title to the office, or his right to continue to act as Moderator of the District. The case made by the People imported that when Hall performed the acts in character of Moderator, which are alleged to have been criminal, the right to the office was a subject of real controversy between Hall and other citizens on the one hand, and several of the local officers on the other; and that Hall continued to hold and officiate during the controversy instead of submitting to the supposed judgment of the Board.

I think the statute authorizing a criminal prosecution against a party for falsely taking upon himself to act or officiate in an office or place of authority, was not intended to apply to a case where a party, in good faith, and during a real controversy as to his title, continues to act in an office to which he has been chosen. He may intend the acts which he performs in the character of an officer, and his title may at the same time be bad. But if a real controversy exists in regard to it, and he holds on in good faith, he cannot be said “falsely ” to take upon himself to act or officiate in the office, nor under the statute in question can he be considered as a criminal for having continued to carry on the office.

The theory of the Judge’s charge to the jury was, however, that if Hall really acted as Moderator after his title to the office had been legally cnt off by the decision of the Board, whatever the circumstances tending to show a real and honest controversy as 'to the validity and binding force of that judgment, he was guilty.

This, I think, was incorrect. It is believed to be quite unnecessary to notice such of the points referred to by counsel as are not disposed of by this opinion, since they will not be likely to arise on another trial.

The judgment below must be reversed and a new trial ordered.

The other Justices concurred.  