his official duties, may be indictable although the same act when affecting only a private party would not be indictable.5 § 616. Partial, malicious and corrupt acts by magistrates. -Where magistrates in the exercise of their official duties act partially, maliciously or corruptly, they are criminally liable. Where a justice of the peace refused a license to a man because of the latter's refusal to vote as the justice desired him to do he committed a nisdemeanor. And where two justices of the peace, whose duty it was to vote for certain candidates for office, entered into a corrupt bargain whereby each agreed to vote for a certain candidate, and the nefarious bargain was carried out, their offense was held indictable at common law. "The defendants were justices of the peace, and as such held an office of high trust and confidence. In that character they were called upon to vote for others, for offices, also implying trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers; and yet, upon the pleadings in this case, it appears that they wickedly and corruptly violated their duty, and betrayed the confidence reposed in them, by voting under the influence of a corrupt bargain, or reciprocal promise, by which they had come under a reciprocal obligation to vote respectively for a particular person, no matter how inferior the qualifications to their competitors. It would seem, then, upon these general principles (previously stated), that the offense in the information is indictable at common law."8 A de facto officer is criminally liable for misfeasance.9 § 617. Other misconduct of officials which is indictable.Where a commissary of public stores contracts with a party 5 State v. Glasgow, 1 N. Car. 264, 2 Am. Dec. 629. 6 Rex v. Holland, 1 Term. R. 692; Rex v. Young, 1 Burr. 556; Rex v. Davis, 3 Burr. 1317; Rex v. Hann, 3 Burr. 1786. 7 Rex v. Williams, 3 Burr. 1317. 8 Commonwealth v. Callaghan, 2 Va. Cas. 460. 9 People v. McCann, 247 Ill. 130, 93 N. E. 100, 20 Ann. Cas. 496n. for supplies on condition that the latter divide with him the profits the former is criminally liable.10 And where an ac.countant in a public office fraudulently omits to make entries in his accounts, whereby the cashier is enabled to retain money and appropriate the interest thereon, the accountant is guilty of a criminal offense.11 It also has been held that a public officer who gets drunk while engaged in discharging his official duties commits a misdemeanor.12 § 618. Refusal to accept public office.-At common law it is a misdemeanor for any person unlawfully to refuse or omit to take upon himself and serve in any public office which he is by law required to accept if duly appointed, provided no other penalty is imposed by law for such refusal or neglect, or the law or custom does not permit composition in place of serving. 13 § 619. Extortion.-This, as previously defined, is the taking under color of office, something of value which is not due.14 It is often considered by text-writers as a distinct crime under a separate heading. To be guilty of the offense one must be an officer, and if no such officer is known to the law, as defendant was claimed to be, then he can not be guilty of extortion.15 But a de facto officer may commit the offense, 16 or one who after his term has expired, collects illegal fees.17 The fees must have been exacted by the officer, not paid to him voluntarily, 18 and must have been received in an 10 Rex v. Jones, 31 How. St. Tr. 251. 11 Rex v. Bembridge, 3 Doug. 327. 12 Commonwealth v. Alexander, 4 Hen. & M. (Va.). 522. 13 Rex v. Bower, 1 Barn. & C. 585; Steph. Dig. Crim. L., art. 123; 1 Russ. on Crimes (9th Am. ed.) 212. 14 Walsh v. People, 65 I11. 58, 16 Am. Rep. 569; Commonwealth v. Mitchell, 3 Bush (Ky.) 25, 96 Am. Dec. 192; State v. Pritchard, 107 15 Herrington v. State, 103 Ga. 17 Jackman v. Bentley, 10 Mo. 293. 18 United States v. Harned, 43 Fed. 376. See also, Leggatt V. Prideaux, 16 Mont. 205, 40 Pac. 377, 50 Am. St. 498. official capacity.19 The taking of fees on the ground of extra work is prohibited and such fees are illegal.20 A corrupt intent was essential at common law,21 but is not under some statutes.22 An honest belief the fees were due is no defense.23 Demanding fees before due is extortion at common law.24 Threatening prosecution to collect a debt or claim is not extortion.2 19 Collier v. State, 55 Ala. 125; Shattuck v. Woods, 1 Pick. (Mass.) 171. 20 Shattuck v. Woods, 1 Pick. (Mass.) 171. 21 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Cobbey v. Burks, 11 Nebr. 157, 8 N. W. 386, 38 Am. Rep. 364. 22 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Cobbey v. Burks, 11 Nebr. 157, 8 N. W. 386, 38 Am. Rep. 364. 23 Levar v. State, 103 Ga. 42, 29 S. E. 467; Commonwealth v. Bagley, 7 Pick. (Mass.) 279. But see Hirshfield v. Ft. Worth Bank, 83 Tex. 452, 18 S. W. 743 .5 L. R. A. 639, 29 Am. St. 660n. 24 State v. Burton, 3 Ind. 93; Lane v. State, 49 N. J. L. 673, 10 Atl. 360. 25 Slater v. Taylor, 31 App. (D. C.) 100, 18 L. R. A. (N. S.) 77; State v. Ricks, 108 Miss. 7, 66 So. 281, L. R. A. 1915 B, 1140. § 625. Definition.-Perjury, as generally understood today, is the wilful and corrupt assertion of a falsehood, material to the matter of inquiry, made under oath or affirmation in a judicial proceeding or course of justice.1 False swearing may, at common law, fall short of being perjury and still be indictable as an independent misdemeanor. In such case, however, the oath must be taken to affect a judicial right.2 At common law perjury is only a misdemeanor, but generally by statute it is a felony.2a § 626. Requisites.-Th Ssential elements of perjury are as follows: (1) The act must be wilful and corrupt. (2) The oath or affirmation must be a lawful one. (3) The proceed 1 United States v. Bailey, 9 Pet. (U. S.) 238, 9 L. ed. 113; People v. Collier, 1 Mich. 137, 48 Am. Dec. 699; Moore v. State, 91 Miss. 250, 44 So. 817, 124 Am. St. 652n; People v. Martin, 175 N. Y. 315, 67 N, E. 589, 96 Am. St. 628, 15 Am. Crim. 591; People v. Osborne, 158 N. Y. S. 330; Commonwealth v. Hinkle, 177 Ky. 22, 197 S. W. 455. 2 State v. Coleman, 117 Ga. 973, 42 So. 471, 8 Ann. Cas. 881n; Reg. v. Chapman, 1 Den. Cr. C. 432, Temp. & M. 90, 2 Car. & K. 846, 3 Cox. Cr. C. 467; United States v. Morehead, 243 U. S. 607, 61 L. ed. 926. 2a People v. Ashbrook, 276 Ill. 382, 114 N. E. 922. ing which is the occasion of the act must be judicial, or one which occurs in the course of justice. (4) The testimony must be either false, or believed to be false and corruptly given. (5) It must be material to the matter of inquiry. § 627. Act wilful and corrupt.-To render the act perjury the testimony must be given wilfully and corruptly. If given inadvertently by mistake, but honestly, the act is not perjury. But when a witness wilfully and corruptly swears to the existence of a fact which he has no probable cause to believe true he commits perjury. And when he swears that he thinks or believes so and so when he really thinks and believes the contrary he commits perjury. Again, when he wilfully and corruptly swears to the existence of a certain. fact which he really believes does not exist, but which in fact does exist, he commits perjury. Where one wilfully and corruptly swears that a certain person revoked his will in his presence, and the witness has no knowledge of the revocation, the fact that the will had been revoked is no defense to an indictment for perjury. But when a person honestly swears to an assertion upon advice of counsel he does not commit perjury. If a witness honestly but erroneously swears to a written statement which he is advised by his counsel is substantially correct he does not commit perjury.8 And where a bankrupt, who has submitted to his counsel a fair statement relative to his property, and who, acting upon 3 Martin v. Miller, 4 Mo. 47, 28 Am. Dec. 342; Lambert v. People, 76 N. Y. 220, 6 Abb. N. Cas. 181, 32 Am. Rep. 293; Steinman v. McWilliams, 6 Pa. St. 170; McDonough v. State, 47 Tex. Cr. 227, 84 S. W. 594, 122 Am. St. 684; People v. Osborne, 158 N. Y. S. 330; State v. Lazarus (Iowa), 164 N. W. 1037. 4 Becherer v. Stock, 49 Ill. App. 270; Gilson v. State (Tex. App.), 15 S. W. 118; Rex v. Edwards, 1 Rus. C. & M. 293; People v. Grout, 161 N. Y. S. 718, 174 App. Div. 608. 5 Rex v. Pedley, 1 Leach Cr. C. 325; Reg. v. Schlesinger, 10 Q. B. 670, 2 Cox Cr. C. 200. 61 Hawk. P. C., ch. 69, § 6. 7 Allen v. Westley, Heb. 97. 8 United States v. Stanley, Fed. Cas. No. 16375, 6 McLean (U. S.) 409; Commonwealth v. Clark, 157 Pa. St. 257, 27 Atl. 723. |