People v. Bogart

The defendant Bogart was indicted by the grand jury for a misdemeanor in violating his duty as a police justice, by unlawfully letting a prisoner to bail without authority, and without notice to the district attorney. The surety, it appears (one Joseph Porkousky), turned out to be “ not what he represented himself;” and when his presence was needed, the usual case of what is denominated straw bail, neither he nor his principal w;as to be found. On the trial of the justice, which took place in February last, before the Court of Sessions, for the alleged misdemeanor, the jury, after a short consultation, under the charge of the city judge, returned a verdict of guilty. Sundry *173exceptions were taken to the charge; and on these exceptions the case is now brought before the general term of the Supreme Court for review.

The principal point made by the defendant’s counsel on the argument was, that the court below erred in charging the jury that in order to sustain the indictment it was not necessary to prove corruption. We think the court were right. No such proof is required. The law says (2 R. 3., 696, § 39), that “ where the performance of any act is prohibited, &c., the doing such act shall be deemed a misdemeanor.” It does not say the doing such act corruptly, but the doing it shall constitute the offence. Every citizen, and especially every police justice, is presumed, in such cases, to know the law, and when he does an act which the law prohibits he is presumed to intend to do it, and, as a consequence, to intend to break the law. The allegation, therefore, in the indictment, that the defendant “ did willfully, maliciously, unlawfully and corruptly do an act prohibited by law,” is a mere legal conclusion. They are formal words, inserted more to give solemnity to the instrument than for any other purpose.

That Justice Bogart was not the committing magistrate, in the complaint of Miller against Lawson, appears from the recognizance taken by him. He, of course, knew that he was not. The warrant for that offence was before him, signed, not by him, but by the recorder. He knew, he certainly was bound to know, that the statute (Laws of 1846, 408) expressly declared that “ no officer other than the committing magistrate should let to bail any person charged with a criminal offence, unless notice of the application to bail such person shall have been given to the district attorney.” He knew that Nambe, alias Lambe, alias Lawson, the alleged thief, was not only charged but indicted. * All this appeared in Recorder Smith's commitment, and in the recognizance signed by himself. He knew, also, that the district attorney was not apprised of the intended application. In bailing *174the prisoner, under these circumstances, he could not help knowing that he was doing an act which the law expressly-prohibited his doing. He was acting, therefore, intentionally, willfully, or, in legal parlance, “ corruptly.” The expressions as thus used, not an uncommon occurrence in legal documents, are synonymous. They have the same meaning as in a plea of usury alleging that the party “ willfully and corruptly” exacted more than seven per cent. The offence imputed to the officer was the doing of an unlawful act knowingly. In such case, as the judge below expressed it, “ the proof of doing the act is evidence of a bad motive, and constitutes the offence. ” It may be that the party accused would have the right to rebut the inference. The defendant has not done so. He has not attempted to do so. The judge, moreover, instructed the jury that, “If there was any evidence tending to prove that fact (namely, a misconception of the full force of the statute), with the view to rebut the presumption of bad intention arising from the doing of the act,” they might, “ under all the circumstances, take it into consideration.” He further expressly charged the jury, “ That if the defendant had proved anything which in their judgment would show that, notwithstanding the legal presumption of intention, he acted honestly and did not mean to do wrong, they should take that into consideration to rebut the presumption.” It seems to me this was all the court could be asked to say; and the verdict, therefore, under such a charge, must be understood as a finding by the jury that the wrong done was not the result of honest mistake. To call such an act judicial, and therefore, like other judicial errors, exempt from indictment, would be to repeal the statute: I mean the statute which prohibits magistrates from thus, ex parte, interfering with, and, in effect, nullifying each other’s commitments. With such a construction, error of judgment would be the universal plea, and acquittal the universal result.

Judgment affirmed.