Mohler v. State

Constable, J., delivered the opinion of the Court. The appellant, a constable, having been indicted for malfeasance in office, filed a demurrer to1 the indictment. The Court below overruled the demurrer, and upon his plea of “not guilty” he was convicted and sentenced, under section 42 of Article 4 of the Constitution, to removal from office. The appeal presents only the question of the sufficiency of the indictment.

The indictment contains but one count, and the main contention of the appellant is that there are two or more separate and distinct offenses embraced in it, and therefore it is bad on account of duplicity. The" indictment alleged that the appellant, while a duly appointed and commissioned constable, did wrongfully, unlawfully, wilfully and corruptly accuse one Frank Spam ³²⁷ pinato of selling goods without a license, and did arrest him by virtue of a warrant wrongfully, unlawfully, wilfully and corruptly obtained from a certain justice of the peace by the appellant as constable, and did corruptly and extorsively, by color of his office as constable, and by virtue of the warrant so obtained, take him before the said justice of the peace for trial on the charge of selling goods without a license, and at a pretended trial of the said Spampinato on said charge, of which charge he was guiltless, did corruptly and extorsively persuade and coerce, by virtue of his office of constable, Spampinato- to pay to- the justice the sum of fifteen dollars, and received from the justice a part of the fifteen dollars,whereas the said Spampinato- was not guilty of the commission of any offense nor had he been given a trial nor had he been advised by the justice of his right to a trial by jury nor pleaded guilty to said charge. The appellant contends that there are included in this single count the following distinct and substantive offenses: (1) that he wrongfully, unlawfully, wilfully and corruptly did accuse one of a crime; (2) that he wrongfully, unlawfully, wilfully and corruptly obtained a warrant for his arrest; (3) that by color of his office and by virtue- of the warrant he corruptly and extorsively took him before a justice; (4) that at a pretended trial he corruptly and extorsively coerced him to pay a sum of money when none was duo. That