State v. O'Gorman

Henry, J. — 1. clerk’s hábilITY FOR FAILURE to report fees, The motion to quash the indictment was properly overruled. The first count charged defendant with a failure, at the end of the year 1874, . to file a statement m detail, under oath or affirmation, showing the aggregate amount of fees and emoluments received by him as clerk for the year 1874. His counsel contend that, in order to be sufficient, it should have been alleged that he failed, neglected and refused, for thirty days after the expiration of said year, to file such statement. Wag. Stat., see. 29, p. 631, requires “the clerks of the several courts, &c., except as hereinafter provided, at the end of each year during their respective terms of office, to deliver to the judge, or judges, of their said courts, under oath or affirmation, a statement in detail, showing the aggregate amount of all fees and emoluments received by them as clerks during the year last past.” Section 31 provides that “any clerk who shall fail, neglect or refuse, for thirty days after the expiration of each year of his office, to file such statement, except as set forth in the *fifth section of this act, shall be liable on his official bond for the surplus which the court may, upon investigation and ex189 animation of evidence find to be due from him, after deducting from the aggregate amount of his fees and emoluments for the year last past, the sum of $2,500, and a reasonable amount for the payment of deputies and assistants, where the same were employed ; and 'if any clerk should fail, neglect or refuse to pay into the county treasury the amount ordered by the court to be paid by him within the time required by the second section of this act, (ten days.) he shall be liable on his official bond fpr the sum so ordered to be paid by him into the county treasury ; and in all cases in which any "clerk shall not file a statement within the time prescribed by this act, &<?., he shall be deemed guilty of a misdemeanor in office,” &e. The argument of the defendant’s counsel is, that the time prescribed by the 29th section for filing the statement is enlarged by the 31st section, but we think it very clear that the provision in section 31, in regard to a failure to make the statement within thirty days after the expiration of the year, has no reference or application to the criminal aspect of the statute, but only to the civil proceeding therein expressly authorized. The 29th section absolutely requires the statement to be made at the end of the year, and the latter clause of the 31st section makes a failure to do so a misdemeanor in office. 2. pleading, tma^escepumis m statutes. It is further urged that the indictment should have negatived the exceptions in section 33, beeausé it is referred to in section 31, which makes the failure of the clerk to file the statement a misdemeanor, The opinion of the court in the case of Com. v. Hart, 11 Cush. 130, sustains this view, but the question was not directly involved in that case, and in support of the position the court only referred to two English cases. To the contrary is Chitty, 1st Crim. Law, 283, 284. Bishop in his work on criminal procedure says, the doctrine laid down by Chitty is that which is generally followed in the United States. The State v. Abbey, 29 Vt. 65, is directly in point. A statute of that State provided that: “ If any person who has a former husband or wife living, shall marry an [190] other person, or shall continue to cohabit with such second wife in this State, he, or she, shall, except in the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished,” ¿•g. Section 6 provided that “the act shall not extend to any person whose husband, or wife, has been continuously beyond the sea or out of the State for seven years,” &c. The court held it unnecessary to negative the exceptions in the 6th section. A nolle prosequi was entered to the second count. 3moeATTD in 01" The first objection to the third count is, that it did not allege that defendant failed, neglected and refused to file su&h statement within thirty days after the expiration of the year. This was unnecessary. The third count is an indictment for a violation of Wag. Stat., sec. 17, p. 487, which makes it a misdemeanor for any officer, or public agent of this State, to commit a fraud in his official capacity or under color of his office. The allegations are, that defendant willfully, corruptly and fraudulently made a false statement and procured the coui’t to receive said statement and make an order discharging him from making any further statement, and that this false and fraudulent statement was made corruptly and falsely, with the intent to cheat and defraud the county and the inhabitants out of the surplus, &c. It contained all the allegations necessary to charge an offense under said section 17. The second objection to this count is, that it does not allege that “ the defendant did not, during the time required by law, by his affidavit, or other testimony, satisfy the court that the fees and emoluments of his said office did not exceed the amount allowed him by law.” The answer to this is that defendant, by this count, is not indicted for a violation of the act in relation to fees, Wag. Stat., p. 631, but for a violation of section 17, supra. If, however, he'had been indicted under the formei statute, we have seen that it would have been unnecessary to negative the exception contained in section 33. [191] 4. -; evidence On the trial the court permitted the State to show that defendant had, for the previous years, and within the time prescribed by the law, delivered to the judges of .the court of which he was clerk, his annual statement. We cannot see how defendant was prejudiced by evidence tending to show that, for the preceding years he had complied with the law. If the State had been permitted to show, that in any previous year he had failed to comply with the requirement of the law, a different question would have been presented. 5. instructions, The modification by the court of the fourth instruction asked for by defendant, of which defendant complains, certainly made the instruction more favorable for defendant than it was before the change was made. As presented by defendant, it declared that unless the jury believe from the evidence that defendant did represent, or cause to be represented, that he had not received more fees, &c. The court inserted after the word “ represented” the words “ falsely and fraudulently with the intent to cheat and defraud the county,” thus requiring not only that they should find that the defendant made the representation, which was the form of the instruction as asked by defendant, but that they should also find.that it was falsely and fraudulently made, &c., before he could be convicted. Why defendant complains of that alteration of the instruction we cannot comprehend. The objection to the second instruction is, that under the third count there was no proof that defendant made any statement to the court, or introduced any evidence as to amount of fees received by him. The records of the county court, introduced in evidence, and the testimony of Steele tended to prove that O’Gorman did make a statement to the court of fees, &c., received by him, and procure the order discharging him. The instructions given by the court fully and fairly presented the law of the case to the jury, and the substance of those refused which were not objectionable, was [192] embraced in those given. The record is voluminous, and the instructions numerous and prolix, and it is unnecessary to comment upon them severally and in detail. We are satisfied that no material error-was committed by the court, and its judgment is affirmed. All concur. Aeeirmed. Footnotes [*] The section here referred to is the fifth in the act as originally enacted. Acts 1868, page 54. In Wagner’s Statutes it is numbered 33, and is as follows: This act shall not apply to any clerk who, at the time required by the first (29th) and fourth (32d) sections thereof, shall, by his affidavit or other testimony, fully satisfy the court of which he is clerk that all the fees and emoluments of his said office for and during the year last past, do not exceed the sum of $2,500. See page 632.