State v. Wynne

• Decision Date: 24 March 1896
• Citation: 24 S.E. 216,118 N.C. 1206
• Court: North Carolina Supreme Court
• Parties: STATE. v. WYNNE et al.

24 S.E. 216

118 N.C. 1206

STATE.

v.WYNNE et al.

Supreme Court of North Carolina.

March 24, 1896.

Public Officer—Receiving Unlawful Compensation—Appointment of Special Constable.

1. An indictment under Code, § 991, making it a felony for a public officer to "receive or consent to receive" any remuneration for the performance or omission of any legal duty except that provided by law, which alleges that defendant did receive "and" consent to receive is sufficient.

2. One in possession of and receiving the emoluments of a public office, though his title is defeasible, is liable for malfeasance in office, the same as though his title thereto was indefeasible.

3. Code, § 645, provides that a justice may, "in extraordinary cases, " appoint any one not a party to execute his mandate. Held, that the decision of the justice as to when such cases arise is conclusive Appeal from superior court, Robeson county; Hoke, Judge.

Joe Wynne was convicted as principal, and Andrew Oxendine as accessary, of a criminal offense, and appeal. Affirmed.

The Attorney General for the State.

French & Norment, and Shepherd & Busbee, for defendant.

FAIRCLOTH, C. J. The defendant Wynne was indicted, under Code, § 991, for unlawfully receiving and consenting to receive money for an illegal purpose, to wit, to discharge a prisoner then in his custody for a crime committed, said Wynne being then a special constable duly appointed under the law of the state; and the defendant Oxen-dine is indicted for being present, aiding, and abetting the unlawful act of the defendant Wynne. The defendants were convicted and appealed.

The defendants contend that the indictment was insufficient, because it uses the words "did receive and consent to receive, " whereas, the act (section 991) uses the words "receive or consent to receive." Receiving necessarily implies consenting to receive, and the court has held that the indictment, in form like the present, was sufficient, and the reasons given in full. State v. Van Doran, 109 N. C. 804, 14 S. E. 32.

The defendant also insists that a constable specially deputized was not an "officer, " within the terms and meaning of the statute. It is not necessary for us to enter into the question of the regularity of defendant's appointment, and whether he was in office or not, for the reason that he undertook and exercised the duty of an officer, and is therefore entitled to its emoluments, and liable to the penalties attaching to a failure to discharge the duties of...