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touching, the same, and the person or persons to whom and in whose presence, and when and where such oath or engagement was administered or taken, by information on oath before one of his majesty's justices of the peace, or one of his majesty's principal secretaries of state, or his majesty's privy council, or in case the person taking such oath or engagement shall be in actual service in his majesty's forces by sea or land, then by such information on oath as aforesaid, or by information to his commanding officer. The 52 Geo. 3, c. 104, contains a similar provision, (sec. 2,) fourteen days being substituted for four days.
*Venue.] Offences under these statutes committed on the [*751 ] high seas, or out of the realm, or in England, shall be tried before any court of oyer and terminer or gaol delivery for any county to England in the same manner and form, as if the offence had been therein committed.
Unlawful combinations.] As connected with this head of offence, the following statutes relative to unlawful combinations are shortly referred to. By the 39 Geo. 3, c. 79, s. 2, all societies, the members whereof are required to take unlawful oaths, or engagements within the intent of the 37 Geo. 3, c. 123, or any oath not required or authorized by law, are declared unlawful combinations.
By s. 8, offenders may be summarily convicted, or may be proceeded against by indictment, and in the latter case are liable to transportation for seven years, or imprisoned for two years.
By the 57 Geo. 3, c. 19, s. 25, all societies, the members whereof shall be required to take any oath or any engagement which shall be unlawful within the 37 Geo. 3, c. 123, or the 52 Geo. 3, c. 104, or to take any oath not required, or authorized by law, &c., are to be deemed guilty of unlawful combinations within the 39 Geo. 3, c. 79.
In Dixon's case, 6 C. and P. 601 (a), Bosanquet, J., held that every person engaging in an association, the members of which in consequence of being so, take any oath not required by law, is guilty of an offence within the 57 Geo. 3, c. 19, s. 25.
Under this head will be considered the evidence requisite in prosecutions against officers,-1, for malfeasance; 2, for nonfeasance: 3, for extortion; and, 4, for refusing to execute an office.
(a) Eng. Com. L. Rep. xxv. 557.
*Proof of malfeasance-illegal acts in general.] It is a general rule that a public officer is indictable for misbehavior in his office. Anon. 6 Mod. 96. And where the act done is clearly illegal, it is not necessary, in order to support an indictment, to show that it was done with corrupt motives. Thus, where a licence having been refused by certain magistrates, another set of magistrates, having concurrent jurisdiction, appointed a subsequent day for a meeting, and granted the licence which had been refused before, it was held that this was an illegal act, and punishable by indictment, without the addition of corrupt motives. Sainsbury's case, 4 T. R. 451. Still more is such an offence punishable when it proceeds from malicious or corrupt motives. Williams's case, 3 Burr. 1317; Holland's case, 1 T. R. 692.
A gaoler is punishable for barbarously misusing the prisoners, Hawk. P. C. b. 1, c. 66, s. 2. So overseers of the poor for misusing paupers, as by lodging them in unwholesome apartments, Wetheril's case, Cald. 432; or by exacting labor from such as are unfit to work, Winship's case, Cald. 76. But it is no part of their duty to cause paupers to be vaccinated. 3 Ad. and E. 552 (a).
Public officers are also indictable for frauds committed by them in the course of their employment. As where an overseer receives from the father of a bastard a sum of money as a compensation with the parish, and neglects to give credit for this sum in account, he is punishable, though the contract is illegal. Martin's case, 2 Campb. 268. See also Bembridges's case, cited 6 East, 136.
Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his fault indictable. Per Cur. Wyat's case, I Salk. 380.
Upon an indictment against a public officer for neglect of duty, it is sufficient to state that he was such officer, without stating his appointment; neither is it necessary to aver that the defendant had notice of all the facts alleged in the indictment, if it was his official duty to have known them. So where a defendant is charged with disobedience of certain orders communicated to him, it need not be alleged that such orders still continue in force, as they will be assumed to continue in force until they are revoked. And an indictment for neglect of duty under a particular statute need not state that the neglect was corrupt, if the statute makes a wilful neglect a misdemeanor. Hollond's case, 5 T. R. 607.
Every inalfeasance or culpable nonfeasance of an officer of justice, with relation to his office, is a misdemeanor, and punishable with fine or imprisonment, or both.
Proof of nonfeasance.] Upon a prosecution for not performing the duties of an office, the prosecutor must prove, 1, that the defendant holds the office; 2, that it was his duty, and within his power to perform the particular act; and 3, that he neglected so to do.
Where an officer is bound by virtue of his office, to perform an act, the [*753] neglect to perform that act is an indictable offence. Thus a *coroner, 2 Chitt. C. L. 255; 1 Russell, 141; a constable, Wyat's case, 1 Salk. 380; a sheriff, Antrobus's case, 6 C. and P. 784 (b), and an overseer of the poor, Tawney's case, 1 Bott. 333; are indictable for not per
(a) Eng. Com. L. Rep. xxx. 151. (b) Id. xxv. 651.
forming their several duties. The majority of the judges were of opinion, that an overseer cannot be indicted for not relieving a pauper, unless there has been an order of justices for such relief, or unless in a case of immediate and urgent necessity. Meredith's case, Russ. and Ry. 46 (a). But where the indictment stated that the defendant (an overseer) had under his care a poor woman belonging to his township, but neglected to provide for her necessary meat, &c. whereby she was reduced to a state of extreme weakness and afterwards, through want, &c. died, the defendant was convicted, and sentenced to a year's imprisonment. Booth's case, Ibid. 47 (n.) (b). And in a case where an overseer was indicted for neglecting, when required, to supply medical assistance to a pauper laboring under dangerous illness, it was held that the offence was sufficiently charged and proved, though the pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief. Warren's case, coram Holroyd, Ibid. p. 48 (c).
By the 11 Geo. 1, c. 4, the chief officers of corporations, absenting themselves on the charter day for the election of officers, shall be imprisoned for six months. Such offence, however, is not indictable within the statute unless their presence is necessary to constitute a legal corporate assembly. Corry's case, 5 East, 372.
Proof of extortion.] One of the most serious offences committed by persons in office is that of extortion, which is defined to be the taking of money by an officer by color of his office, either where none at all is due, or not so much is due, or where it is not yet due. Hawk. P. C. b. 1, c. 68, s. 1. So the refusal by a public officer to perform the duties of his office, until his fees have been paid, is extortion. 3 Inst. 149; Hescott's case, 1 Salk. 330; Hutt. 53. So it is extortion for a miller or a ferryman to take more toll than is due by custom. Burdett's case, infra. So when the farmer of a market erected such a number of stalls that the market people had not space to sell their wares, it was held that the taking money from them for the use of the stalls was extortion. Burdett's case, 1 Ld. Raym. 149.
The prosecutor must be prepared to prove, first, that the defendant fills the office in question. For this purpose it will be sufficient to show, that he has acted as such officer; and secondly, the fact of the extortion. This must be done by showing what are the usual fees of the office, and proving the extortion of more. Several persons may be indicted jointly, if all are concerned; for in this offence there are no accessaries, but all are principals. Atkinson's case, 2 Lord R. 1248; 1 Salk. 382; Loggen's case, 1 Str. 75.
The indictment must state the sum which the defendant received, but the exact sum need not be proved, as where he is indicted for extorting twenty shillings, it is sufficient to prove that he extorted *one [ *754 ] shilling. Burdett's case, 1 Ld. Raym. 149; Gillham's case, 6 T. R. 267; Higgins's case, 4 C. and P. 247 (d).
The offence of extortion is punishable as a misdemeanor at common law, by fine and imprisonment, and by removal from office. Hawk. P. C. b. 1, c. 68, s. 5. Penalties are likewise added by the statute of Westm. 1, c. 26.
(a) 1 Eng. C. C. 46. (b) Id. 47. (c) Id. 48. (d) Eng. Com. L. Rep. xix. 368.
It is also an indictable offence to persuade another to extort money from a person, whereby money actually was extorted from him. case, 3 Salk. 192 (1).
Proof on prosecutions for refusing to execute an office.] A refusal to execute an office to which a party is duly chosen, is an indictable of fence, as that of constable; Lone's case, 2 Str. 920; Genge's case, Cowp. 13; or overseer. Jones's case, 2 Str. 1145; 7 Mod. 410.
The prosecutor must prove the election or appointment of the defendant, his liability to serve, notice to him of his appointment, and his refusal. It must appear that the persons appointing him had power so to do. Thus on an indictment for not serving the office of constable on the appointment of a corporation, it must be stated and proved that the corporation had power by prescription to make such an appointment, for they possess no such power of common right. Bernard's case, 2 Salk. 52; 1 Ld. Rayın. 94. The notice of his appointment must then be proved, Harpur's case, 5 Mod. 96, and his refusal, or neglect to perform the duties of the office, from which a refusal may be presumed.
For the defence, it may be shown that the defendant is not an inhabitant resiant, of the place for which he is chosen. Adlard's case, 4 B. and C. 772 (a); Donne v. Martyr, 8 B. and C. 62 (b); and see the other grounds of exception enumerated in Archb. Cr. Pr. 630, 7th ed.
It is not any defence that the defendant resides in the jurisdiction of a leet within the hundred or place for which he is elected. Genge's case, Cowp. 13; or that no constable had ever before been appointed for the place. 2 Keb. 557.
The punishment is fine or imprisonment, or both. 1 B. and C. 587 (c).
See Bower's case,
(1) The fees must be wilfully and corruptly demanded. It is not extortion in case of mistake, or for extra trouble in conformity with usage. Commonwealth v. Shed, 2 Mass. 227. There must be the receipt of money or some other thing of value. Taking a promissory note is not enough. Commonwealth v. Corry, 2 Mass. 524. See People v. Whaley, 6 Cow. 661.
(a) Eng. Com. L. Rep. x. 458. (b) Id. xv. 154. (c) Id. viii. 153.
The proofs required to support an indictment for perjury at common law will be first considered, and the statutes creating the offence of perjury in various cases will be subsequently stated.
Perjury at common law.] Perjury at common law is defined to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. Hawk. P. C. b. 1, c. 69, s. 1. The proceedings, however, are not confined to courts of justice (1). Vide post, p. 758. The taking of a false oath
required by statute is not perjury, unless so declared by the act, but is a misdemeanor; see post, p. 760.
To support an indictment for perjury, the prosecutor must prove, 1, the authority to administer an oath; 2, the occasion of administering it; 3, the taking of the oath; 4, the substance of the oath; 5, the materiality of the matter sworn; 6, the introductory averments; 7, the falsity of the matter sworn; and, 8, the corrupt intention of the defendant. 2 Stark. Ev. 621, 2d ed.
Proof of the authority to administer an oath.] Where the oath has been administered by a master in chancery, surrogate or commissioner, having a general authority for that purpose, it is not necessary [ *756 ] to prove his appointment; it being sufficient to show that he has acted in that character. See the cases cited, ante, p. 7, and p. 16. But as this evidence is only presumptive, it may be rebutted, and the defendant may show that there was no appointment, or that it was illegal. Thus after proof that the oath had been made before a person who acted as a surrogate, the defendant showed that he had not been appointed according to the canon, and was acquitted. Verelst's case, 3 Campb. 432. Where the party administering the oath derives his authority from a special commission, directed to him for that purpose, it is necessary to prove the authority, by the production and proof of the commission which
(1) The definition of Hawkins uses the words "in a course of justice," which is more accurate than the phrase in the text "in a court of justice."