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Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) online

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there unlawfully, riotously, tumultuously, and with force, felo-
niously and against the form of the statute in such case made
and provided, begin to demolish and pull down the dwelling-
house of M. C, there situate and being, and did also then and
there unlawfully, riotously, and tumultuously injure and destroy
the household furniture and effects of divers quiet and peaceable

such part of the charges in the first count as rehited to demolisliiiig houses and
furniture.

The fourth count stated a riot to have occurred in the defendant's presence,
and that he, disregarding his duty, did not make the prochiniation, but reiused
and neglected and omitted so to do.

The fifth count stated the riot, and that the defendant was a justice of the
peace and present at it, and tlien went on: "And tliat the said B. K., beinrr
such justice of the peace as aforesaid, and disreganling tlie duty of his said olfice,
did not ai)prehend or restrain the said persons so unlawfully, riotously, and
tumultuously assembled as last aforesaid, or any of them, or endeavor so to do, or
use any means or endeavors whatsoever to suppress and put an end to the said
unlawful, riotous, and tumultuous assembly, or execute, or endeavor to execute,
any of the powers and authorities by the laws of this realm vested in the said B.
K. as such justice of the peace as last aforesaid, in that behalf; but the said B.
K then and there unlawfully, willuUy, and contemptuously refused, nei^lected,
and omitted to apprehend or restrain the said rioters, or any of them, or en-
deavor so to do, or to use any means or endeavors whatsoever to suppress and
put an end to the said unlawful, riotous, and tumultuous assembly, or execute, or
endeavor to execute, any of tiie powers and authorities by the laws of this realm
vested in him the said B. K. as justice of the peace aforesaid, in that behalf; and
then and there unlawfully permitted and sufi'ered the said persons so unlawfully,
riotously, and tumultuously assembled, to be and continue tliere so unlawfully,
riotously, and tumultuously assembled, for a long space of time, to wit, I'or the
space of four hours, contrary to the duty of liis said olHce of justice of the peace
as aforesaid, in contemi)t, " etc.

The sixth count was similar to the fifth count, except that it stated the i-iot in
rather more general terms.

Lord Mansfield charged the jury generally, that "A magistrate may assemble
all the king's subjects to quell a riot, and may call in the soldiers, who are sub-
jects and may act as such ; but this should be done with great caution ; and that
at the time of the riot, he might repel force by force befoi-e the reading of the
proclamation from the riot act. If," he declared, "on a riot taking place, the
magistrate neither reads the proclamation from the riot act, nor restrains nor
apiirehends the rioters, nor gives any order to fire on them, nor makes any use
of a military force under his command, this is prima facie evidence of a criminal
neglect of duty in him ; and it is no answer to the clun-ge for him to say that be
was afraid, unless his fear arose from such danger as would all'ect a firm man ;
and if rather than ap{)rehend the rioters his sole care was for himself, this is also
neglect." The topic is discussed moi-e fully in Wh. Cr. L. 8th ed. § 1584.

VOL. II.— 29 449



(898) OFFENCES AGAINST SOCIETY.

subjects of onr said lord the king, ^vhose names are at present
unknown to the said attorney' -general, and commit and perpe-
trate other outrages and enormities ; and the said attorney-gen-
eral of our said lord the king, for our said lord the king, giveth
the court here to understand and be informed, that B. K., late
of London aforesaid, esquire, at the time of the said unlawful,
riotous, and tumultuous assembly, to wit, on, etc., and before
and afterwards, was maj^or of the city of London aforesaid, and
also one of the keepers of the peace and justices of our said lord
the king, assigned to keep the peace and also to hear and deter-
mine divers felonies, trespasses, and other misdemeanors com-
mitted within the said city of London, that is to say, at, etc. ;
and that the said B. K., being such mayor and justice of the
peace as aforesaid, well knew of a)id was personally present at
the time and place of the said unlawful, riotous, and tumult-
uous assembly, and whilst the said persons so unlawfully, riot-
ously, and tumultuously assembled were committing and per-
petrating the aforesaid felony, injuries, outrages, and enormities,
to wit, on, etc., at, etc. ; and it was then and there the duty of
the said B. K., as such mayor and justice of the peace as afore-
said, for the dispersing of the persons so unlawfully, riotously,,
and tumultuously assembled as aforesaid, and the suppressing
and putting an end to the said unUnvt'ul, riotous, and tumult-
uous assembly, to have then and there made, or caused to be
made, proclamation in the manner prescribed and directed in
and by an act of parliament, made in the parliament of the lord
George the First, late king of Great Britain, etc., at a session
thereof holden at Westminster, in the county of Middlesex, in
the first year of his reign, entitled "An act for preventing
tumults and riotous assemblies, and for the more speedy and
effectual punishing the rioters." And the said attorney-general
of our said lord the king, for our said lord the king, givetii the
court here furthci- to understand and be informed, that the said
B. K., Ijcing such mayor and justice of the peace as aforesaid,
and well knowing of the said unlawful and tumultuous assem-
l)ly, and being so present as aforesaid, but disregarding his duty
as sucli mayor and justice of the peace as aforesaid, and the
directions contained in tlie said act of parliament for the sup-
pressing of tumults and riots, did not at any time during the
450



MISCONDUCT OF JUSTICES. (899)

said unlawful, riotous, and tumultuous assembly, make, or cause
to bo made, proclamation in tlie manner prescribed and directed
by the said act of parliament, but then and there, to wit, on,
etc., at, etc., wilfully, obstinately, and contemjituously nci^lected,
refused, and omitted to make, or cause to be made, proclamation
in the manner prescribed and directed by the said act of parlia-
ment, and thereby then and there unlawfully permitted and
suffered the said persons so unlawfully, riotously, and tumult-
uously assembled as aforesaid, to be and continue there unlaw-
fully, riotously, and tumultuously assembled as aforesaid, for
divers, to wit, four hours, doing, committing, and perpetrating
the said felony, injuries, outrages, and enormities, contrary to
the duty of him the said B. K., as such mayor and justice of
the peace as aforesaid, in contempt, etc. {Conclude as in book 1,
chapter 3.)

(899) Against a justice of the 'peace^for jproceeding to the duties of
his office in a state of intoxication.{d)

That A. B., etc., on, etc., at, etc., did take his seat as a justice
of the peace in the county of Loudon, the ninth of August, one
thousand eight hundred and three, on the bench of the said
county court, and act as a justice and member of the court then
and there sitting, in giving his vote upon a judicial question and
examination at the time depending in the said court, and in sign-
ing the minutes of its proceedings as presiding justice thereof,
while he the said A. B. was in a state of intoxication from the
drinking of spirituous liquors, which rendered him incompetent
to the discharge of his duty with decency, decorum, and discre-
tion, and disqualified him from a fair and full exercise of his un-
derstanding in matters and things, at the time and place last
mentioned judicially before him, to the great disgrace of the ad-
ministration of public justice, and to the evil example of persons
in authority ; whereby the said A. B. was guilty of misbehavior
in his office of justice of the peace in and for the said county
of Loudon, against, etc. {Conclude as in book 1, cJiapter 3.)

{(l) Com. c. Ak'-xaiidcr, 1 Va. Cases, 15G.

451



(901) OFFENCES AGAINST SOCIETY.

(900) Against a justice of the ijeace^for issuing a warrant without
oath, using falsely the name of a third i^arty as prosecutor. {e)

That A. B., justice, etc. [stating office), on, etc., at, etc., out of
malice, etc., towards a certain J. H., a surveyor of the highway,
and with a wicked and malicious intent to disquiet, defraud, and
oppress the said J. H., and falsely, wickedly, and maliciously to
cause the said. J. H. to be put to costs and expenses, unjustly, wick-
edly, maliciously, and unlawfully wrote, signed, and issued under
his own hand, as such justice of the peace, a certain warrant or
summons, to a constable directed, commanding him to summon
the said J. H. to appear before him, the said A. B., to answer to
a certain complaint and information of a certain J. W., made
against him the said J. H., for not keeping a road [describing it)
in rejniir, and upon that warrant or summons caused the said J.
H. to appear before him the said A. B,, as such justice of the
peace, to answer the comiilaint aforesaid, and upon a hearing
therein did not acquit the said J. 11. of the complaint aforesaid,
but uulawfully,corruptl3', and wickedly adjudged the said J. H.
to pay the costs of the same ; whereas, in truth and in fact, the
said J. W. never did make to the said A. B,, nor to any other
justice of the peace, the complaint or information aforesaid
against the said J. H., nor did the said J. W., nor any other per-
son, direct the said prosecution, but the said A. B. falsely and
wickedly used the name of the said J. W., without his knowledge
and against his directions, in contempt of his the said A. B.'a
oath and duty, as a justice of the peace, to the evil example, etc.
[Conclude as in book 1, chapter 3.)

(901) Against a justice of the peace in Pennsylvania, for refusal to
deliver transcript to party demanding it.[f)

That "\V. B., etc., being a justice of the peace in and for the

(('.) Wallace, r. Com., 2 Va. Ciisi's, 130.

To tills iiKlictiiicnt, tlic dctciKlaiit jilcadcd not guilty, and t.lio jury convicted
him and assessed his fine at oiu- hundreil dollars. The sii])erior court therc-
uiion entered a jiidjfineiit aj^aiiist him, that he l)e removed from his ollice oC jus-
tice of the peace, and that he he incapahle of exercisinjf the duties of the same,
and also a jud^'ment for the fine. An aj)i)lication for a writ of error was after-
wards refused hy the geiu'ral court.

(/') DaTn'v /'. Ijuni., .) Kawle, ;>!). 'i'his indictuu'iil i.s un<ler ihc rcnn.«yiviinla
act of L'Oth March, IHlo, j^ '2.'5, and was sustained hy ihe supreme court as suffi-
ciently descriptive of the oil'ence created hy that section.

452



MISCONDUCT OF JUSTICES. (902)

district numbered six, composed of the townships of B. und S.,
in the said county of B., duly commissioned und sworn to do
the duties of the said office with fidelity and according to law,
a certain suit was commenced and instituted before him as such,
of which suit and of the cause of action thereof he lawfully
had jurisdiction and cognizance, wherein a certain J. B. was
plaintiff, and a certain F. C. was defendant, and in which suit
the said W. B., as a justice of the peace, entered judgment,
and that on, etc., at, etc., and within the jurisdiction of this
court, with force and arms, etc., he the said W. B., as a justice
of the peace, did unlawfully refuse to make out a copy of his
proceedings at large in the said suit, and deliver the said copy,
duly certified by him, to the said F. C, the defendant in tlie suit ;
he the said F. C. having then and there required and demanded
the same of the said W. B. as a justice; and he the said F. C.
then and there did tender unto him the said W. B. as a justice
of the peace, eighteen and three quarter cents, the just and legal
fee of him the said W. B. for his services in tliat behalf afore-
said ; to the great hinderance and obstruction of public justice,
against, etc. {Conclude as in book 1, chapter 3.)

(902) Against a justice of the peace in Massachusetts for extortion

generally. { g)

That A. B., on, etc., then being one of the justices of the
peace in and for the county of duly and legally appointed

and qualified to perform tiie duties of that office, not regarding
the duties of said office, but contriving and intending one C. D.
to injure and oppress, on the said day of in the 3'ear

aforesaid, at in the county aforesaid, by color of his said

office, did wilfulW, corruptly, and extorsively demand, take, and
receive of him the said C. D.(A) a greater fee than is allowed
and provided by law for the trial of a certain issue then and
there in due form of law joined and pending before him the said

(_«7) Davis's Prec. 119. This indictment is founded on Massaclnisetts statute
1795, ch. 41, § G, and may, says INIr. Davis, be adopted mutatis mutandis, tor ex-
tortions by all other officers and persons mentioned in the statute.

(A) It would be better to aver the sum taken, and how muoli is illegal. Wh.
Cr. L. 8th ed. §§ 1572, 1574 et seq. When the act is averred to b(! negligent,
intent is not to be alleged. State v. Small, I Fairfield, 109; People v. Coou,
15 Wend. 27 7; Jacobs v. Com., 2 Leight, 709; State v. Gardner, 2 Mo. 22.

453



(903) OFFENCES AGAINST SOCIETY.

A. B., as a justice of the peace for the said count}- of be-

tween the aforesaid C. D. and one E. F,, in a certain civil action
commenced and entered by the said 0. D. against tlie said E. F,,
before him the said A. B., justice of the peace as aforesaid, at a
justice's court duly appointed, and then and there held by him,
the said A. B., to wit, the sum of for the trial of the said

issue, which sum is more than the fee allowed and provided by
law for the service aforesaid ; contrary to the duty of him the
said A. B. in his office aforesaid, against, etc. {Conclude as in
book 1, chapter 3.)

(903) Against a justice of the peace^for extorting fees for discharging
a recognizance^ and for not returning the same to the court
for which it was taken.{i)

That K. J., of, etc., on, etc., and continually afterwards, until
the day of the taking of this inquisition, was, and yet is, one
of the justices of the peace within and for the said county of,
etc., duly and legally appointed and authorized to discharge the
duties of that office. Nevertheless the said Is". J., not regarding
the duties of his said office, but |)erverting the trust reposed in
him, and contriving and intending the citizens of this common-
wealth, for the private gain of him, the said N". J., to oppress
and impoverish, and the due execution of justice, as much as in
him lay, to hiniler, obstruct, and destroy, on the da}' of

and between that day and the day of the finding of this
bill, at aforesaid, in the count}- aforesaid, under color of

liis said office of justice of the peace for the said county of
a certain sum of money, to wit, the sum of for not return-

ing a certain recognizance before him, within the time aforesaid,
taken for the appearance of one G. J. at a certain term of the
[here describe the court to which, the recognizance was made return-
able)^ to be holden next after the taking of the recognizance afore-
said from tlie said G. J., unlawfully, unjustly, and extorsively
did exact, receive, and iiave ; ami although the said next court
of (here describe the conrt)^ for the county aforesaid, after tlie
taking of the recognizance aforesaid, and to which the said re-

{i) Diivis's Vrvr. 122; 1 T'rciii. P. V. 1 1 !». Tliis iiidictinctit would be more
corrtTt if it contained an allcfr-'ition of tlic pnrticidar natiiri' and condition of tlio
recogriizancc, and also tliut tliu niagistnite was autliurizcd to take it.

454



MISCONDUCT BY CONSTABLES, ETC. (905)

cognizance oiiiijlit to have been returned, was held at in

the county aforesaid, on the Tuesday of in tlie year

aforesaid, in the due course of law, the said N. J. the said recog-
zance, to the court aforesaid, as of right, and according to his
duty and the laws of said commonwealth he ought to have done,
did not return, but suppressed the same, against the duties of
his said office, to the great hinderance of justice, against, etc.
(Conciade as in book 1, chapter 3.)

(904) Against a constable for extorting money ofapersori apprehended

by him upon a warranty to let Jam go at large.{j)

That A. B., of, etc., on at in the county aforesaid,

then and there being one of the constables of the town of
in the county aforesaid, did take and arrest one C. D., by virtue
of a warrant duly made and issued, which he the said A. B. then
and there had, directed, etc. {here insert the icarrant)', and that
the said A. B., him the said C. D. then and there had in his
custody, by virtue of the said warrant, and that the said A. B.
afterwards, to wit, on at in the county aforesaid,

unlawfully, corruptly, and extorsively, for the sake of gain and
contrary to the duty of his said office, did extort, receive, and
take of and from the said CD. the sum of for discharging

the said C. D. out of the custody of him the said A. B., consta-
ble as aforesaid, without conveying the said C. D. before any
justice of the peace in and for said county, or before any other
lawful authority, to answer to the charges, matters, and things
whereof he stood accused and charged as aforesaid ; against, etc.
{Conclude as in book 1, chapter 3.)

(905) Against a constable^ for neglecting to execute a warrant in a

civil case.

That whereas A. K. and I). F., Esqrs., two of the justices of
the peace of the said county of P., dulj- elected and commis-
sioned, did, on, etc., at, etc., and within the jurisdiction of this
court, issue their warrant, under their hands and seals, to any

{j) Davis's Prec. 121 ; see 2 Chit. 295, 29G ; Cro. C. C. .327, 6th ed. ; 2
Stark. 585 : and for other jn-ecc'dents for extortion in 2 Chit. 20G, 297 ; Cro. C.
C. 327 j 1 Trem. P. C. HI, 115; 2 Chit. 300, ajrainst a collector, for extorting
money by color of his ofiice. Wh. Cr. L. 8th ed. § 1574.

455



(906) OFFENCES AGAINST SOCIETY.

constable of the said county directed, setting forth thiit A. T.,
Esq., one of the sub-lieutenants of the said count}', having before
them the said justices obtained judgment, in due and regular
form of law, against T. F., for the sum of twenty five pounds
ten sbillings, lawful money of by him the said A. T.

expended in procuring a substitute to serve in the militia, in
the first class of tiie fifth battalion of the county aforesaid, in
the place of him the said T. F,, with costs ; that the said consta-
ble was thereby required and enjoined to levy the said sum of
twenty-five pounds ten shillings and costs, with the costs thereby
accruing, by distress and sale of the goods and chattels, lands
and tenements of the said T. F., as the law directed, returning
the overplus, if any, to the owner. And the inquest aforesaid
do say, that the said warrant was, on, etc., delivered and offered
and tendered to he delivered to J. Z., then and there being con-
stable of the township of W., one of the townships of the said
county of P., to be by liim executed. And the inquest afore-
said do further say, that the said J. Z., then and there being
constable of the said township of W,, on, etc., and ever since,
until, etc., at, etc., and within the jurisdiction of this court, did
neglect to execute the said warrant, against, etc., and against,
etc. (Conclude as in book 1, chapter 3.)

(906) Against a constable^ for neglecting to execute a justice's
warrant for the apprehension of a ■person.{k)

That heretofore, to Avit, on, etc., at, etc., W. N., Esq., then and
still being one of the justices assigned, etc., did make a certain
warrant in writing, under his hand and seal, bearing date on,
etc., directed to the constable of the parish of G., in the county
of D., thereby in her majesty's name charging an<l coninianding
the said constable that, etc. (Acr^ set forth the warrant); wliich
said warrant, afterwards, to wit, on, etc., at, etc., aforesaid, was
dul}' indorsed for execution by and in the name of X. Y., Esq.,
then being mayor and one of iier majesty's justices of the peace
in and for the borougii of D., in the said county of I)., and
which said warrant so indorsed, afterwards, to wit, on, etc., at,
etc., was delivered to T. 0., late of, etc., then and still being

(/i) Dickinson's Q. S. Cth cd. 43.'>. Wh. Cr. L. 8th ed. § 1580.

456



MISCONDUCT BY CONSTABLES, ETC. (907)

constable of the said parish of G., in the county aforesaid, in
due form of law to be executed ; and tlie said T. 0. was then
and there required to execute the same, by bringing the body of
the said E. E,. before the said W. N., at the time and place and
for the purpose in the said warrant mentioned. And the jurors,
etc., that although the said T. 0. could and might and ought to
have executed the said warrant accordingly, the said T. O., so
being constable of the said township of G., in the county of D.
aforesaid, not regarding the duty of his said office, did not, nor
would, execute the said warrant as aforesaid, or otherwise how-
soever, but unlawfully, wilfully, obstinately, and contenji)(u()Usly
neglected and refused so to do, and therein failed and made
default ; to the great hinderance of public justice, in contempt,
etc., to the evil, etc., and against, etc.(^) {Conclude as in book 1,
chapter 3.)

(907) Against a constable^ for extorting and obtaining money under
color of discharging a bench warrant.{m)

That A. B., late of, etc., on, etc., then being one of the con-
stables of the said parish, at, etc., did take and arrest one C. D.,
by color of a certain warrant called a bench warrant, which he,
the said A. B., then and there alleged that he had in his posses-
sion ; and that the said A. B,, afterwards, and while the said C.
D. so remained in his custody as aforesaid, on, etc., at, etc., un-
lawfully, corruptly, deceitfully, and extorsively, and by color of
his said office, did extort, receive, and take of and from the said
C. D. the sum of two guineas,(>?) as and for a fee due to him

(Z) The 33 Geo. III. c. 55, gives summary jurisdiction to justices to punish
parish ofiicers for neglect of duty, but that remedy does not supersede tlie an-
cient one liy indictment. Dickinson's Q. S. 6th ed. 435.

(///) Dickinson's Q. S. Gth ed. 435.

(?)) An information against tiie ferryman over the Menai, hiid the ferry to be
ancient from time out of mind, and " that \d. was the usual rate of passage for man
and horse, Id. for twenty cattle, 2d. for twenty sheej), etc., and that deiendant,
being tiie common ferryman between, etc., and day of exhibiting information, iii-
juste oi)pressive et deceptive cepit et extorsit de diversis ligeis et sudditis domini
regis ignotis to the attorney-general, passing that way, diversas denariorum sum-
mas excedent anti(|uam rotam et pretium pro ])assagio et transportatione suis et
averiorum suorum, viz., pro {)assagio ciijusli/iet personge cum ecjuo suo, '2d., et pro
ifiiibuslibet 20 cata/lix, 2s., et sic secund arm ratam pra'dietam pro majoi-i vel ini-
nori numero averiorum." Judgment arrested for aecumulatinc several otfences
under a general charge ; each extortion from every particular person being a
separate otience whicii should have been laid singly, so as to enable the court to

457



(908) OFFENCES AGAINST SOCIETY.

the said A. B., as such constable as aforesaid, for the obtaining
and discharging of the said warrant, as he the said A. B. then
and there alleged ; whereas, in truth and in fact, no fee whatever
was tiien due from the said C. D. to the said A. B., as such con-
stable in that behalf; in breach of the duty of his said office of
constable, and against, etc.(o) {Conclude as in book 1, chap-
ter 3.)

(908) Against constables,for neglecting to attend the sessions.(p)

That J. H. and A. Y., etc., on, etc., then and long before were
constables of the townsliip of Blockley, in the said county, and
that T. A. of the same county, yeoman, on the day and year
aforesaid, at the county aforesaid, was a constable of the town-
ship of B., in the said coniit}^ ; and that S. W., etc., on, etc., and
long before was a constable of the township of L. D., in the said
county, and that R. W., etc., on, etc., and long before was a
constable of the township of the manor of M., in the said
count}^ and that B. V., etc., on, etc., and long before, was a
constable of the township of 0., in the said county. And the
inquest aforesaid, ujion their oaths and affirmations aforesaid, do



Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) → online text (page 51 of 85)