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directed to him, requiring the apprehension or confinement of any person charged with a criminal offence, or shall corruptly and wilfully omit to execute such process by which such persons shall escape, or shall receive any gratuity or reward, or any security or engagement for the same, to procure, assist, connive at, or permit any person in his custody on any civil process, or on any criminal charge or conviction, to escape, whether such escape be attempted or effected or not, the officer so offending shall, on conviction, be adjudged to suffer fine and imprisonment, and be for ever disqualified for civil trusts.
It is not perceived how the sheriff could exempt himself from the application of the spirit of this statute, otherwise than by assuming the ground that he was beyond the jurisdiction of the state, and had no process whatever. But he was, nevertheless, consciously acting as an agent of the state. He was at Washington by virtue of verbal executive directions, which were to be authenticated by a requisition hourly expected; and on his return to Albany he presented that process to the comptroller, together with his affidavit that he had travelled to and from Washington, and sojourned there by virtue and in execution of the process.
Thirdly, the governor is of opinion that the sheriff was guilty of a want of moral honesty and official fidelity, in demanding and receiving payment at the treasury for duties which not only he had not performed, but which, to the scandal of public justice, for a pecuniary consideration, he had bargained not to perform. The sheriff excuses the delinquency by saying that he believed, from knowledge of the circumstances of the accused, that the notes received from him, amounting to $120, would not be paid, although the checks would be paid, and the avails of those checks might be paid to the prosecutor. But the state does not pay prosecutors, nor compound felonies, nor authorize sheriffs or agents to do so. The obligations of the state to pay the sheriff for executing its process, could not depend upon any such contingency as the failure of the accused to perform an illegal agreement into which he entered to screen himself from trial.
Fourthly, the governor is of opinion that the sheriff was guilty of improper conduct, in executing the agreement with the accused, by obtaining a discharge from the prosecutor; and deems it worthy of especial notice, that, in effecting that object, the sheriff, although he had before been fully paid at the treasury, at first claimed $80 out of the avails of the securities in his hands and relinquished that claim only when the prosecutor insisted on having the entire sum of $180, as a condition of ratifying the agreement the sheriff had assumed to make.
The sheriff offers, in extenuation of his conduct, the facts, that since all the transactions happened which have been the subjects of animadversion, the accused, although insolvent, has satisfied and paid the prosecutor his demand, and has given bail to appear and answer the indictment.
It does not appear when, by whose agency, or with what motive, these recent acts of the accused were done. There is too much reason to suppose they were done after the complaints against the sheriff were made, or in view of them; and, whenever done, they can not affect the justice of the complaints.
Upon these grounds, the governor is of opinion that David Moulton ought to be removed from the office of sheriff of Oneida county, and a supersedeas will therefore issue.