Gaudy v. State

• Citation: 4 N.W. 1019,10 Neb. 243
• Parties: JAMES L. GANDY, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Decision Date: 19 March 1880
• Court: Supreme Court of Nebraska

4 N.W. 1019

10 Neb. 243

JAMES L. GANDY, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 19, 1880

ERROR to the district court of Richardson county. It was an information in the nature of quo warranto, on the relation of the district attorney, alleging, in substance, that in April 1879, Gandy was duly elected mayor of the city of Humboldt in said county, and is still acting as such mayor; that at the time of such election "he was not an elector of the state of Nebraska, and not being such, was ineligible to be elected to the said office of mayor of said city of Humboldt or to any other office of honor or trust in said state," for the reason, as it is charged, that in June, 1872, he was convicted in the United States district court for the district of Nebraska of a felony or infamous crime. The prayer of the information is that the defendant be required to answer by what warrant or authority he claims to hold the said office. To this information Gandy demurred generally and the demurrer having been overruled, he answered, admitting that he had been elected to and was then holding the said office, setting up specifically his right to hold the same, and denying the allegation of the petition in reference to the conviction of a felony or other infamous crime. On the trial of the case before Weaver, J., a jury having been waived by the parties, the state offered in evidence a transcript of the record of the United States district court, which transcript is referred to in the opinion. The defendant offered no evidence, but it was expressly admitted by the parties that Gandy was duly elected to and was holding the said office, and that he had a right to hold the same, unless the transcript showed the conviction of such an offense as would disqualify him therefrom. Judgment of ouster was rendered, and he brought the cause up by petition in error.

Reversed.

Schoenheit & Thomas, for plaintiff in error.

Isham Reavis, for defendant in error.

OPINION

LAKE, J.

Counsel for the state are manifestly mistaken in supposing that Gandy, the plaintiff in error, was convicted of two distinct offenses. The indictment on which he was tried, it is true, contained two counts, but both of them were framed under sec. 5440 of the Revised Statutes of the United States. Neither count purports to charge a violation of section 5448, but the gravamen of each is an alleged conspiracy to violate a law of the United States, and this only.

In the first count the alleged conspiracy was that said Gandy and his co-defendant, McKinney, "did unlawfully and fraudulently represent to one Israel R. Cummings, that he, the said Pierce H. McKinney, alias J. S. Allison, was a United States revenue officer for the district of Nebraska," etc., whereby they were enabled to and did fraudulently extort from said Cummings the sum of twenty-five dollars as a revenue tax due from him as a retail dealer in spirituous, vinous, and malt liquors, and the further sum of three hundred and eighty dollars, in full satisfaction of an alleged violation by said Cummings of said revenue law in retailing such liquors, without having first paid the special tax required by law.

The second count simply charges a conspiracy between the same parties to "personate the United States marshal, and a United States revenue officer of the district of Nebraska, intending unlawfully to extort and receive from the said Israel R. Cummings large sums of money;" that in pursuance of said conspiracy it is charged they did extort from said Cummings the sum of three hundred dollars.

In neither of these counts is it charged that Gandy "falsely represented himself to be a revenue officer," which would have been an indispensable averment in an indictment under section 5448. This section is in these words: "Every person who falsely represents himself to be a revenue officer, and in such assumed character demands and receives any money or other article of value from any person for any duty or tax due to the United States, or for any violation or pretended violation of any revenue law of the United States, shall be deemed guilty of a felony, and shall be fined five hundred dollars, and imprisoned not less than six months, and not more than two years."

That the judge of the court, in which the alleged conviction of Gandy took place, did not consider that either count of the indictment was based upon this section, is evident from the judgment which he rendered on the verdict of guilty on "both counts of the indictment" returned by the jury.

The judgment was that Gandy should "pay a fine of $ 1,000 and the costs of this prosecution, and that he be committed for the period of ninety days from and including the sixth day of May,...