Hiss v. State

• Decision Date: 11 May 1866
• Citation: Hiss v. State, 24 Md. 556 (Md. 1866)
• Parties: CHARLES D. HISS v. STATE OF MARYLAND.
• Court: Maryland Court of Appeals

24 Md. 556

CHARLES D. HISS v. STATE OF MARYLAND.

Court of Appeals of Maryland

May 11, 1866

Where a justice of the peace received bank notes during the trial of a cause before him, and afterwards refused to deliver up such notes to the person legally entitled to them, it was held that the justice of the peace was guilty of a misdemeanor, for which he was indictable and punishable at common law.

Writ of Error to the Circuit Court for Baltimore County:

This was a writ of error to the Circuit Court for Baltimore County, in the case of the indictment of one Charles D. Hiss, a Justice of the Peace, for malfeasance in office, removed from the Criminal Court of Baltimore City. The facts are stated in the opinion of this court.

The cause was argued before BOWIE, C.J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

John H. Ing, for the plaintiff in error:

The indictment charges that "after the release of the negro Silas Wright, it then and there became and was the duty of the said Hiss, as Justice, to deliver the money to the person legally entitled to demand and receive the same.

The State thus, by its own averment, concedes that the discretion by judgment of the Justice, was to be exercised in determining the person legally entitled to demand," etc.

For error of judgment in deciding that Mr. Daniel was not entitled, and as a consequence of such error of judgment in neglecting and refusing to pay Mr. Daniel, the appellant is arraigned criminally. Does this constitute a criminal offense? Can the indictment be sustained?

In Martin v. Mott, 12 Wheat. 31, the Supreme Court of the United States say: "Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts.

It was the plain duty of the Justice to retain the money for the master, or to await proof of the negro's freedom. No man is liable to an action for what he doth as judge. 2 Hawkins Pl. of the Crown, 85, sec. 20.

Under the 4th Art., 1st sec. of Constitution of 1851, judicial power was vested in Justices. For an error in judgment a Justice is not punishable. Burr. 556, 785, 1162.

Upon the facts set forth in the indictment, a civil action was the remedy of Mr. Daniel, not an indictment. In Deal v Harris, 8 Md. 40, the Court of Appeals say in substance "The Judge is to be held harmless for a wrong judgment provided the error results from an erroneous conclusion at which he arrives.

Negro Peter v. State, 4 H. & McH. 3, is an authority to show that on a writ of error the judgment of an inferior court may be reversed in a criminal case.

That a writ of error is a remedial writ, and may be used in every case, ex merito justitiæ, see Show. 13, 260. 1 Lev. 149, 189. Hob. 116. Vent. 30, 34, 353, 42, 203. 1 Leon, 325. Walcott's Case, Salkeld. Co. Litt. 260 a.

A. Randall, Attorney General for the State:

The State, the appellee, contends that the court below was correct in overruling the motion in arrest of judgment.

1st. Because the jury by their verdict having found that the traverser by virtue of his office, took these bank notes and promissory notes from Silas Wright, a prisoner charged with stealing them, whom he afterwards released from that charge, and that the notes should have been returned to the prisoner's assignee, Wm. Daniel, who demanded the same, and who was known to the traverser to be the assignee thereof; and that the traverser unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty in that behalf as Justice of the Peace, neglected and refused to deliver the same, etc., did thereby convict the traverser of the charge set forth in the indictment.

This finding of the jury excludes the idea of the negro's being a slave or unable to make the assignment of the notes, and indeed all other of the defenses set up in this court by the traverser inconsistent with this verdict.

It was a matter of no consequence whether or not there was any obligation on the part of the traverser officially to receive these notes from the prisoner, as he did in fact receive them by virtue of his office. Having thus received them, and afterwards released the prisoner from the charge of stealing them, it was the duty of the traverser, as Justice of the Peace, to restore them to the prisoner's assignee, known to him as such, which itself excludes the idea of any other ownership.

It was no business of the Justice of the Peace to set up pretended claims for imaginary owners, in violation of his plain official duty to the assignee whom he knew, as the verdict shows, to be the real owner of the notes.

This is not a case of any error of judgment or discretion of a Justice of the Peace in the discharge of his official duty, for his duty officially had terminated when he discharged the negro prisoner, and as an incident these notes should then have been delivered to the assignee, but the traverser having, as the jury find, wilfully, corruptly, unlawfully, oppressively, and in violation of and contempt of duty, refused so to do, excludes any such notion as error of judgment or of discretion.

2nd. The facts being thus clearly found, and the wilful, corrupt and oppressive conduct of the Justice of the Peace being clearly proved, and his prostitution of his office to a corrupt purpose, he is subject to punishment, either by information or indictment, as will be seen by the following authorities, viz: 5 Bacon's Abr. 426, title, Justices of the Peace, letter F, secs. 1, 2,...