Old v. Commonwealth

• Decision Date: 17 October 1867
• Citation: 59 Va. 915
• Parties: OLD v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

59 Va. 915

OLD v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

October 17, 1867

1. The Code (1860), ch. 194, § 6, p. 799, punishes the omitting or delaying to perform any duty pertaining to the office of one who is authorized to serve legal process.^[a1]

2. The offence punishable by the act, is the omitting or delaying to perform any duty, & c.; not the doing any act.

3. The presentment should follow the terms of the statute, or must use terms which show conclusively, or beyond any rational doubt to the contrary, that the accused is guilty of the offence described in the statute; and unless this is done the addition that " so the accused did receive money for omitting and delaying to perform a duty pertaining to his office of constable," & c., will not cure the defect.

4. Where the presentment does not charge the offence, the appellate court will reverse the judgment against the accused, though no motion in arrest of judgment was made in the court below.

5. Where a pecuniary judgment has been rendered against a defendant in a criminal case, and he pays it, and upon appeal the judgment is reversed, the cause will be remanded to the court below, for an order of restitution to be made therein if the money is yet in the hands or power of the court.

At the May term for 1866 of the Circuit Court of Halifax county, the grand jury made a presentment against William J. Old, in the words following:

" We present William J. Old, a constable of the first magisterial district in the county of Halifax, for this, that he did on the 7th day of September, 1865, in the county of Halifax, then and there acting as constable as aforesaid, and authorized by law to serve legal process, unlawfully receive twenty-five dollars from James M. Moore, in consideration of which, he then and there unlawfully undertook and agreed to dismiss a warrant then pending for a claim which had been put into his hands as constable as aforesaid for collection, by John R. New, in behalf of said New against the said James M Moore, at the cost of the said New, and that he did afterwards, to wit: on the day and year last aforesaid unlawfully dismiss and procure to be dismissed, without the knowledge or consent of said New, the said warrant; so we the jurors say, that the said William J. Old did, on the said 7th day of September, 1865, in the county aforesaid, receive money for omitting and delaying to perform a duty pertaining to his office as constable as aforesaid, fraudulently and corruptly, against the peace and dignity of the commonwealth of Virginia, upon the evidence of James M. Moore, John R. New and John Buntin, Jr., witnesses sworn in open court and sent to the grand jury to testify."

At the October term of the court, Old appeared and filed the plea of " not guilty." The case was tried, and the jury found him guilty and assessed his fine at fifty dollars. Old thereupon moved the court for a new trial, on the ground that the verdict was contrary to the evidence. But the court overruled the motion, and entered a judgment upon the verdict for the fine of fifty dollars and costs; and also that he should be imprisoned in the county jail for ten days.

Old excepted to the opinion of the court overruling his motion for a new trial; and the court certified the facts upon the record, in substance as follows:

Prior to, and on the 7th of September, 1865, in the county of Halifax, the defendant was a duly qualified constable in said county, and was acting as such. John R. New, of said county prior to the said 7th September, 1865, gave to the said constable a claim which he set up against one James M. Moore, of said county, to collect--said claim being for eighteen dollars, which he alleged was the value of two hogs belonging to him, which had been killed by said Moore--and the defendant afterwards saw Moore, and informed him that he had a warrant against him, Moore, for the sum of eighteen dollars, in behalf of New. At that meeting Moore did not make known to the defendant whether he intended to resist the claim or not; but several days after, Moore and defendant met at Ballow & Hankins' foundry, in said county; and the defendant and Moore had a further conversation about said warrant; which having been heard by J. D. Hankins, who was present, Hankins suggested to Moore, that as the hogs, which were killed by him, had destroyed a quantity of his growing crop of wheat, he ought to file an offset to New's claim for the amount of damages so done his crop; and proceeded to make out an account of said damage, at which the charge made was twenty dollars. While the persons present (the defendant being one of them,) were talking on the subject, Moore expressed himself as anxious to get rid of the warrant, and of New and his family, who occupied premises near his plantation; and thereupon the defendant proposed, for the sum of twenty-five dollars, to get him rid of the warrant, and to have New and his family removed from the place then occupied by them. Moore had no money with him then, but ascertained that he could get it from Hankins, who, however, suggested that he might set up the offsett aforesaid. He told the defendant that he was so anxious to get rid of the warrant and the News, that he would give the sum demanded, if he would dismiss the warrant at New's costs, and would bind himself to get them away from the premises then occupied by them. The defendant then hesitated, and declined at that time to accept the said sum and undertake so to do; but next day, at a sale in the neighborhood, and in the county of Halifax, the defendant and Moore met, when Moore again offered the defendant the same sum; and the defendant agreed to accept it, and then prepared a writing and signed the same, in these words: " Received of James M. Moore the sum of twenty-five dollars, to be applied to the removal of John R. New from the place where he now resides; and in case the said New is not removed, after the 1st of January, 1866, the above amount of twenty-five dollars is to be returned to the said J. M. Moore--this the 7th day of September, 1865" --and handed it to Moore, who, after reading it, told him that he had left out the main thing, and that was the agreement to dismiss the warrant; and then the defendant added the words signed by him on the same paper, in these words: " The warrant of John R. New against J. M. Moore is to be dismissed at the costs of the said New; " and handed it, so amended, to Moore, who then paid him the sum of twenty-five dollars. Moore distinctly stated to the defendant at the time, that the principal inducement to him to pay the said sum, was to get rid of the warrant. Afterwards, John R. New, finding that nothing had been done, as he supposed, by the defendant against Moore, gave the claim to another constable to warrant upon; but before he went to serve the warrant upon Moore, New ascertained that Moore had settled said claim with the defendant; told the constable to warrant the defendant; and the constable did accordingly serve a warrant upon the defendant at Halifax courthouse; who at the time said he owed New nothing, and had nothing in his hands belonging to him, and objected to being warranted out of his magisterial district; and thereupon the constable made the same returnable at a place within the magisterial district in which the defendant resided; and then he went to Moore to summon him as a witness; but Moore refused to go unless forced to do so; but at last gave up to him the paper hereinbefore copied; which, when shown to New by said constable, he told the constable not to carry on the warrant against the defendant any longer; and went to the attorney for the commonwealth of this county, who, after reading the paper, and hearing the evidence of Moore, sent them in before the grand jury, to state the facts as they occurred. Not long after the presentment was made on the evidence of New and Moore, John R. New died. The justice of the peace of the county of Halifax, who was in the habit of trying the warrants tried in the district of which the defendant was constable, was in the habit of signing blank warrants and giving them to the defendant, who was in the habit of filling them up as occasion demanded; and nearly all the warrants tried by him were issued in blank, and filled up by the constable aforesaid; and such blanks were placed in the hands of the defendant; and Moore never was afterwards cited to appear, at any time or place by the defendant, to answer for said claim so given to him by New as aforesaid.

Old paid the fine and costs, and the judge of the court suspended the judgment until the first day of the next term of the court. And Old obtained a writ of error from this court.

Barksdale, Mayo and Haymond, for the appellant, insisted:

1st. That the presentment was defective. It does not allege that the warrant was pending before any certain justice or court. If it is necessary to prove that the warrant was pending, then it was necessary to allege it; nothing can be supplied by intendment. They referred to 2 Hawkins' Pleas of the Crown, p. 310, § 57; p. 313, § 60; Newell v. The Commonwealth, 2 Wash. 88; 2 Rob. Pr. (old edi.) 64, 73; Conner v. Commonwealth, 2 Va. Cas. 30.

2d. The Commonwealth must prove the charge as laid in the presentment. Commonwealth v. Hickman, 2 Va. Cas. 323; Tate v. Berry, 2 Bailey S. C. R. And there is no proof that a warrant was issued, or that it was dismissed. The only proof that can be relied on to show that a warrant had been issued is the statement of the appellant to Moore that he had a warrant. But he is not estopped by his admissions from disproving the fact; and it is disproved. And there is not even an admission that the warrant had been dismissed.

The Attorney General, for the...