go into a calculation and state each sum. This may be necessary to be shewn to a jury, but not to appear on a record. All the cases in Hawkin's turn on the principle stated, and leave out indifferent matters, specifying only those that constitute the offence, and without which the prisoner would have been innocent. To the same effect is 4 Com Di. 391. G. certainty to a general intent is sufficient. The same in Rex v. Brunsden, Cro. Car. 438. S. C. 448. To a general indictment against a sheriff's officer charging with having taken twenty shillings, many exceptions were taken, but on this point not one: 1 Sid 91.* the case cited from Hawkins. The court will find the same doctrine in 11 Vin. Abr. 471, 4. 14 Vin. Abr. 363 Pl. 8. n. Rex v. Cover. Rex v. Reffit 7 Mod. 220. But should it even be admitted that the charge is insufficiently made, after a verdict it is too late to be insisted on. Every circumstance that might have been fatal on demurrer cannot be taken advantage of, after trial and conviction. A verdict cures many defects; and particularly those which must have been removed before the party could have been found guilty. Rex v. Cover cited in 4 Bac. Abr. 454. No authority has been adduced to shew that it is necessary to set forth the specific charge. There is no book which will warrant it, and it is repugnant to the cases of Rex v. Brunsden and Rex v. Cover. If they are law the exception is good for nothing. Besides the over charge might be a sum in gross; for a regular bill might be made out for 25 dollars, and 30 be received. This will evince that it might be impossible to point out the identical charge in which he was guilty of extorting. As to not stating the due fee, this has ever been considered as an immaterial allegation, it is only a circumstance attached to the offence and it is enough. if it appear in evidence. But though the omission be a defect, it is cured by the verdict. The case in 3 Leon. 268, is the only one that can be found to maintain the exception. It seems however to have turned altogether on the words of a particular statute; that of the 25 Ed. 3. ch. 9, made against clergymen who took more than their fee for giving absolution. By looking at the act it will be found to have required a more than ordinary degree of cer ALBANY, August 1803. The People V. Ruft. *Rex v. Cover. ALBANY, August 1803. The People V. Ruft. tainty in the proceedings, and the court, probably felt themselves under its influence. That the statute demanded a greater precision than the common law must necessarily be inferred from its being passed; for had it been otherwise it never would have been enacted. This is evident from the decision in Rex v. Reffit and Potts's Case. In those a verdict was had on a general indictment, like the present, and the court held it well, saying they could not then go into the exception. In Rex v. Baines as appears by Holt's report of it 512, there was no determination on the point now objected. It was an indictment for taking eight shillings for a subpoena of only twelve lines. The charge was "for divers misdemeanors in the execution of his ❝ office in the articles following, viz." So that the offences were laid under a videlicit, and a mere recital. Holt said that it was not charged for what fees, whether as clerk, or in what capacity, it was alleged to have been done in the execution of his office. Powell, one of the judges who was against the articles, mentioned the case in 3 Leon. but the other judges took no notice of it, and it does not appear to have been at all rested upon. The court will never require impossibilities. If this objection should prevail, in many instances an attorney could never be indicted. Suppose he should refuse a copy of his bill and destroy it. To be sure the court might order a copy to be produced: but then, no other than the party injured could call upon him; so that this would confine the proceedings to the person injured, and lessen the generality of the remedy. What if the attorney chose to be in contempt? He would put himself beyond the ordinary course of law. In Rex v. Reffit and Rex v. Cover a fee was due for one of the servi ces, it was not set out, and yet the conviction deemed good. For if stated it would not enable the court to form a better judgment of the nature of the offence, it would give them no greater information than they now have; unless every specific service is to be charged, then what was due, and then what was received. The objection is not now tena.. ble for though it might have been good on demurrer, it is cured by the verdict, the inference being that all the facts were proved. From hence the conclusion must be that he extorted, and this word is used in the charge. But, if these objections be done away, it is still urged that we have not laid it to have been done under colour of his office, and that the money is not stated to have been received in the Cause, or for fees. This latter exception is not true in fact. The indictment sets it forth with all convenient, though not with all possible certainty. It states the suit, that Rust was the attorney for the plaintiff, that being so, and while prosecuting the suit for the plaintiff as such attorney, he extorted from one of the defendants eleven dollars more than were due in the suit, and more than were due to him, and the other officers and ministers of the court for their respective services in the said suit. This there fore is substantially good 1 Trem. 8vo. Ed. of English trans-" lation 115. 4 Went. Plead. 146.* Colore officii though inserted in the precedents in one or two reports may be dispensed with. If it appear that the party charged with the offence was acting in his office it is sufficient. In the part of Hawkin's relied on, B. 2, c. 25.S. 57, after enumerating the technical terms that could not be omitted, it does not say that colore officii is indispensable. Rex v. Baine's' states the objection, but it was not acceded to. The indict-' ment says that he was acting as an attorney; this is fully' enough. As to the argument that the proceedings are not' good under either of the acts of the legislature, it may be very briefly answered, that it is immaterial whether it be so or not, if good at common law; to which its conclusion against the peace &c. cannot be objected. The whole tenor of the indictment shews the money was taken by colour of his office. It is doubted however whether an attorney be such an officer as is intended by the act of the 7th January 1788. "For prevention and punishment of extortion." Attornies are always stated to be officers of the court, and taken to be ministerial officers. They are licensed, regulated, and liable to punishment by the court, and therefore creatures of it. The act mentioning sheriff or other officer whatsoever ministerial or judical; if then an attorney be an officer, the indictment will be good under that law, because the words knowingly and wilfully are not in it, The extortion was under pretence of getting a dif, barge, not under colour of office, therefore could not be fo laid. ALBANY, August 1803. The People V. Ruft. . The fee bill 2 Rev. Laws 88 has these terms. It is not denied but that the indictment would have been more for mal had it contained these words; yet in Hawk. B. 2. C. 25. s. 96, it is mentioned that if a statute contain the word unlawfully, you must use it, or something tantamount. Therefore it is not necessary to use every adjective the act may contain. The words of the indictment and those of the law when compared will be found to be co-significant, The question then is whether the words, taken collectively, do not sufficiently indicate that the money was received knowingly and wilfully? whether they do not import as much? This however is a public statute and it is not ne cessary to recite it. This principle is equally applicable whether the fac charged be prohibited by one or more statutes. The averment therefore against the form of the statute is exabundanti and not fatal. Two words are also said to be omitted, which are essential to the description of the offence of extortion. At common law these words are not required. This is a misdemeanor, not originating on any statute; it is the old common law offence: the words of the statute only shew what would be extortion, and the court will please to observe that colore officii can apply. only where no fee is allowed at all; which is a different species of extortion from the present. That the judg ment ought to have been for treble damages can be enforced as an argument against the proceedings, only if they be deemed to be on the statute, but if held to be at common Law, it cannot prevail. The authority cited on the opposite side from Cro. Car. 448 is in point to this,though it has been mistaken by the party by whom used. Another reference may be made to shew an exception cannot be taken for not giving damages. 2 Stra. 1048.* « quod convictus "est," was adjudged enough, because every thing the law. erdains is implied and results from the words; but what rests in discretion must be inserted. Nor is it necessary, though the act order fine and imprisonment, that both should be inflicted; its being a fine only, does not vitiate. In General Gordons case, the same thing was determined by this court. It is fuppofed Rex v. Luckup, is the cafe alluded to. It does not however seem perfectly analogous. There is no authority to support the objection on account of omitting to say " at the court house;" and that which is taken against the continuances is equally untenable. The sessions may adjourn to any day within the sessions in the same manner as they may make their process returnable; in conformity to which, (to the venire,) the continuance is made. That the party aggrieved is not mentioned has already been answered, and of this the whole indictment is a complete refutation. If this indictment prevail, deleterious consequences it is said will ensue, and that indictments can be thus preferred will be a doctrine dangerous to the profession. There is no man, continued the district attorney, who more wishes its well being than myself, but neither its interest nor its honor require that practices like these should go unpunished. The court therefore though called on to require more certainty in this indictment than any other cannot be influenced by the considerations suggested: it is not by law necessary, and that is sufficient, Emmott in reply. The court will perceive that the charge may affect the defendant most seriously: it is not only the fine he has to pay, but it may go to striking him off the rolls and depriving him of the means of subsistence. The sum does not induce him to come here, but, that he might have the means of support. The indictment is not pretended to have been framed on a bill of Rust's, but on an estimate made by the parties who met together, calculated what he ought to have received, and then, because in their opinion he had taken too much, they proceed in this rigorous manner. It perhaps would have been full as effectual for the purposes of justice if they had left the punishment to the court of which he is an attorney. Two kinds of errors are insisted upon. One goes to the form, and that we contend is materially defective. This, an inspection of the record and authorities will prove. From Hawk. B. 2. c. 25. s. 123, and the cases there cited, two general rules may be drawn. That the nature of the commission ought to be set forth and the authority to hold the court apparent on the record. It is not stated that the justices were of the peace for the county. Therefore, notwithstanding Blackstone, when we look at our law, we U ALBANY, The People V. Ruft. |