that travelling on a Sunday is not illegal, which is, that in many places you pay additional toll at the turnpikes if you pass through them on a Sunday, by which the legislature plainly contemplates travelling on a Sunday as a thing not illegal. I do not encourage travelling on Sundays, but still it is not illegal. With respect to the non-tender ⚫of money by the prosecutor, it is now a custom so universal with innkeepers, to trust that a person will pay before he leaves an inn, that it cannot be necessary for a guest to tender money before he goes into an inn; indeed, in the present case no objection was made that Mr. Williams did not make a tender; and they did not even insinuate that they had any suspicion that he could not pay for whatever entertainment might be furnished to him. I think, therefore, that that cannot be set up as a defence. It however remains for me next to consider the case with respect to the hour of the night at which Mr. Williams applied for admission; and the opinion which I have formed is, that the lateness of the hour is no excuse to the defendant for refusing to receive the prosecutor into his inn. Why are inns established? For the reception of travellers, who are often very far distant from their own homes. Now, at what time is it most essential that travellers should not be denied admission into the inns? I should say when they are benighted, and when, from any casualty, or from the badness of the roads, they arrive at an inn at a very late hour. Indeed, in former times, when the roads were much worse, and were much infested with robbers, a late hour of the night was the time, of all others, at which the traveller most required to be received into an inn. I think, therefore, that if the traveller conducts himself properly, the innkeeper is bound to admit him, at whatever hour of the night he may arrive. The only other question in this case is, whether the defendant's inn was full. There is no distinct evidence on the part of the prosecution that it was not. But I think the conduct of the parties shews that the inn was not full; because, if it had been, there could have been no use in the landlady asking the prosecutor his name, and saying, that if he would tell it, she would ring for one of the servants. Verdict Guilty. PARK, J., sentenced the defendant to pay a fine of 20s.1 CROUTHER'S CASE. [Reported Croke Eliz. 654.] CROUTHER was indicted, for that a burglary was committed in the night by persons unknown, and J. S. gave notice thereof unto him, being then constable, and required him to make hue and cry, and he 1 See Rex v. Taylor, Willes, 538 note; Reg v. James, 2 Den. C. C. 1. refused, etc. Exception was taken to the matter of the indictment, because it hath been adjudged that an hundred shall not be charged with a robbery committed in the night, because they are not bound to give attendance; no more ought a constable to do it in the night. But all the Court held the indictment to be good, notwithstanding; for it is not like to the case of an hundred; because it is the constable's duty, upon notice given unto him, presently to pursue. And it was said that in every case where a statute prohibits anything, and doth not limit a penalty, the party offending therein may be indicted, as for a contempt against the statute.1 Another exception was taken, because he did not shew the place of the notice; and that was held to be material. Whereupon the party was discharged. COMMONWEALTH v. CALLAGHAN. GENERAL COURT OF VIRGINIA. 1825. [Reported 2 Virginia Cases, 460.] THIS was a case adjourned by the Superior Court of Law of Alleghany County. The case itself is fully set forth in the following opinion of the General Court, delivered by BARBOUR, J.: This is an adjourned case from the Superior Court of Law for the County of Alleghany. It was an information filed against Callaghan and Holloway, two of the justices of Alleghany, alleging in substance the following charge: That at a court held for the county of Alleghany, there was an election for the office of commissioner of the revenue and of clerk of said court, when the defendants were both present, and acting in their official character as magistrates in voting in said election; that the defendant Callaghan, in said election for commissioner of the revenue, wickedly and corruptly agreed to vote, and in pursuance of said corrupt agreement did vote, for a certain W. G. Holloway, to be said commissioner, in consideration of the promise of the defendant Holloway that he would vote for a certain Oliver Callaghan to be clerk of said court; and that the defendant Holloway in the said election of clerk wickedly and corruptly agreed to vote, and in pursuance of said corrupt agreement did vote, for a certain Oliver Callaghan to be said clerk, in consideration of the promise of the defendant Callaghan that he would vote for the aforesaid W. G. Holloway to be commissioner. To this information the defendants demurred generally, and there was a joinder in the demurrer. The Superior Court of Law of Alleghany, with the assent of the defendants, adjourned for novelty and difficulty to this court the questions of law arising upon the demurrer to the information, and particularly the following, namely: 1 See Reg. v. Wiatt, 11 Mod. 53; State v. Haywood, 3 Jones (N. C.), 399. 1. Is there any offence stated in said information for which an information or indictment will lie? 2. Is the offence charged in the said information within the true intent and meaning of the Act of the General Assembly entitled "An Act against buying and selling offices," passed Oct. 19, 1792, in page 559, 1st vol. Rev. Code of 1819? 3. If the offence be within the said act, is the information filed in this case a good and sufficient information? The first and second questions, for the sake of convenience, will be considered together. It is proper to premise that a general demurrer admits the truth of all facts which are well pleaded; there being such a demurrer in this case, and the information distinctly alleging that the defendants, in giving their votes respectively, acted wickedly and corruptly, such wicked and corrupt motive will be considered throughout as forming a part of the case. The court are unanimously of opinion that the case as stated in the information is not within the true intent and meaning of the Act of Assembly referred to in the second question. That act embraces two descriptions of cases: 1. The sale of an office or the deputation of an office; 2. The giving a vote in appointing to an office or the deputation of office. It would be within the latter description that this case would fall, if within either; but the court are decidedly of opinion that this case does not fall within this description, because the plain construction of the statute is that the penalties which it denounces are incurred only by those who receive or take, either directly or indirectly, any money, profit, &c., or the promise to have any money, profit, &c., to their own use or for their own benefit. In this case it appears from the information that the promise of each of the defendants to the other, which constituted the consideration of the vote of that other, and the vote given in consequence of such promise, inured not to the benefit of the defendants or either of them, but to the benefit of others. If indeed it had been alleged in the information that the persons for whom the votes were given, were, if elected, to have held them upon any agreement, that the defendants should in any degree participate in their profits or receive from the holders of them any benefit or advantage, the case would have been different, for then the defendants would have received a profit indirectly, and thus would have fallen within the statute; but there is no such allegation. The court being thus of opinion that this case was not embraced by the statute, but at the same time considering that that system of criminal jurisprudence must be essentially defective which had provided no punishment for acts such as are charged in the information, and which merit the reprehension of all good men, were led to inquire whether the acts charged in the information did not constitute an offence at common law; and they are of opinion that they do. In relation to those offences which rise to the grade of felony there is usually, particularly in the designation of them by name, an accuracy in the definition; as, for example, murder, burglary, arson, &c., in each of which the term ex vi termini imports the constituent of the offence; but in the general classification of crimes whatever is not felony is misdemeanor. In relation to these, then, they are not only numerous but indefinitely diversified, comprehending every act which, whilst it falls below the grade of felony, is either the omission of something commanded or the commission of something prohibited by law. As to these the law can do no more than lay down general principles, and it belongs to the courts of the country to apply those principles to the particular cases as they occur, and to decide whether they are or are not embraced by them. Thus the law, as a general proposition, prohibits the doing of any act which is contra bonos mores. The particular acts which come up to this description it is impossible to include in any precise enumeration; they must be decided as they occur, by applying this principle to them as a standard. Thus, again, it is now established as a principle that the incitement to commit a crime is itself criminal under some circumstances. 6 East, 464; 2 East, 5. As for example, the mere attempt to stifle evidence, though the persuasion should not succeed. Cases of this kind may be as various as the varying combinations of circumstances. To come more immediately to the present case, we hold it to be a sound doctrine that the acceptance of every office implies the tacit agreement on the part of the incumbent that he will execute its duties with diligence and fidelity. 5 Bac. Abr. 210, Offices and Officers, Letter M. We hold it to be an equally sound doctrine that all officers are punishable for corruption and oppressive proceedings, according to the nature and heinousness of the offence, either by indictment, attachment, action at the suit of the party aggrieved, loss of their offices, &c. 5 Bac. Abr. 212, Letter N. And further, that all wilful breaches of the duty of an office are forfeitures of it, and also punishable by fine (Co. Litt. 233, 234), because every office is instituted, not for the sake of the officer, but for the good of another or others; and, therefore, he who neglects or refuses to answer the end for which his office was ordained should give way to others, and be punished for his neglect or oppressive execution. Let us apply these principles to the present case. The defendants were justices of the peace, and as such held an office of high trust and confidence. In that character they were called upon to vote for others, for offices also implying trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers, and yet upon the pleadings in this case it appears that they wickedly and corruptly violated their duty and betrayed the confidence reposed in them, by voting under the influence of a corrupt bargain or reciprocal promise, by which they had come under a reciprocal obligation to vote respectively for a particular person, no matter how inferior the qualifications to their competitors. It would seem, then, upon these general principles that the offence in the information is indictable at common law. But there are authorities which apply particularly to the case of justices. In 1 Bl. Com. 354, n. 17, Christian, it is said if a magistrate abuse his authority from corrupt motives he is punishable criminally by indictment or information. Again, where magistrates have acted partially, maliciously, or corruptly, they are liable to an indictment. 1 Term Rep. 692; 1 Burr. 556; 3 Burr. 1317, 1716, 1786; 1 Wils. 7. An instance of their acting partially is that of their refusing a license from motives of partiality, the form of the indictment for which is given in 2 Chitty's Crim. Law, 253. We are then of opinion, for the reasons and upon the authorities aforesaid, that the offence stated in the information is a misdemeanor at common law for which an information will lie, but that it is not within the statute referred to. In answer to the third question we are of opinion that the information is a good and sufficient one. All which is ordered to be certified to the Superior Court of Law for Alleghany County. REX v. SEYMOUR. KING'S BENCH. 1740. [Reported 7 Mod. 382.] SEYMOUR, Boyce, Blatch, and Duffield attended at the king's bench in order to receive judgment, upon their being found guilty upon several informations.1 CHAPPLE, the junior Judge, having attended Baron Carter, who tried the informations, reported to the Court that there were three several informations, one against Seymour, and Boyce, a justice of peace; another against the same Seymour, and Blatch, a justice of the peace; and a third against the said Seymour, and Duffield, a justice of the peace. 1 Acc. Rex v. Chalk, Comb. 396; Anon., 6 Mod. 96; Reg. v. Buck, 6 Mod. 306; Tyner v. U. S., 23 App. D. C. 324, 362; People v. Coon, 15 Wend. (N. Y.) 277; Com. v. Brown, 23 Pa. Super. Ct. 470. "However reprehensible it may be for a member of the legislature to keep 'open house' for the entertainment of members, where they may partake of 'light refreshments, wine, beer, liquors, and cigars,' it falls short of estab lishing a case of bribery. A bribe' is defined to be a 'price, reward, gift, or favor bestowed or promised with a view to pervert the judgment or corrupt the conduct of a judge, witness, or other person.' 'To bribe' means 'to give a bribe to a person to prevent his judgment or corrupt his actions by some gift or promise.' To give entertainments for the purpose of unduly influencing legislation is wholly bad in morals, but does not constitute the crime of bribery." GRANT, J., in Randall v. Evening News Ass'n, 97 Mich. 136, 56 N. W. 361. |