CHAPTER 37. OFFICIAL MISCONDUCT; EXTORTION. § 904. Usurpation. To falsely assume to be and to act as an officer, or to act as such without authority,' or before giving a bond as required by law,' is criminal. But one who only assumes to be an officer without acting as such, or who acts in good faith under color of right, or being a detective serves a warrant of arrest without assuming to be other than a detective," or being re-elected constable serves a warrant without requalifying, is not guilty under the law. 8 § 905. Abuse of authority.-An officer who with corrupt motive does an act beyond his lawful authority, assuming to act officially and under his official designation, in such a manner as is likely to deceive and mislead others, is guilty of malfeasance in office, and it is unnecessary that any injurious effect results from his misconduct. Under particular statutes which are found in many of the states it has been held criminal to issue a county warrant where no claim was filed," or to let a contract on disadvantageous terms without advertising for bids," it making no difference that such contract was illegal,12 1 P. v. Cronin, 80 Mich. 646; C. v. Wolcott, 10 Cush. 61. It must appear that the assumption was false, with intent to defraud: U. S. v. Curtain, 43 Fed. R. 433. Extorting money by pretending to be an officer, e. g., a military officer entitled to grant a discharge from service, is criminal: Serlested's Case, Latch, 202. So it is criminal to make use of pretended legal process to compel the payment of money: S. v. Shooter, 8 Rich. 72; and see Bloomfield v. Blake, 6 C. & P. 75. To act as grand juror without being selected was, in an old case, held to be a crime: Scarlet's Case, 12 Coke, 98. 2 S. v. Bevans, 37 Ia. 178. So it was held that officers who had acted under authority of the Confederate government were civilly liable for their acts: Caperton v. Martin, 4 W. Va. 138, and other cases on pp. 173, 176, 203, 354 and 420 of same volume. 3 U.S. v. Evans, 1 Cranch, C. C. 149. 4 P. v. Cronin, 80 Mich. 646; C. v. Wolcott, 10 Cush. 61. 5 Kreidler v. S., 24 Ohio St. 22. or to issue a warrant upon a claim for an amount more than was due,1 or to vote to allow such a claim, or to allow one not due.3 § 906. Misconduct.- Where a county attorney procures the discharge of a prisoner through the influence of his office he is guilty of malfeasance even though the writ is insufficient. An officer who destroys a public document, or abstracts legal papers and substitutes others with false returns thereon, is guilty of an indictable offense. Where a public officer receives money for safe keeping, that being outside of his official duties, a conversion of it will not be punishable under a statute for official misconduct; and under a similar statute it was held that embezzlement of property belonging to a private person was not included. Demanding illegal fees may be misconduct under a statute making official misconduct a ground for removal. Where an act acquires weight by reason of the office held by the person doing it that it would not otherwise have, a falsification or misdoing is criminal. Consequently a false certificate as to official records," or as to the amount of witness fees," or a false statement to court by an official under color of his office,13 is an indictable offense. Unnecessary cruelty or harshness in the treatment of persons under an officer's control is not to be tolerated," and this even extends to a director of the poor who apprentices a child to a cruel and inhuman master.15 An unlawful arrest may subject the officer to punishment for false imprisonment.16 But the crime of false imprisonment is discussed elsewhere.17 § 907. Refusal to act.-Where an officer has a duty to perform that is not discretionary, a refusal to act makes him lia peace is pun ble to indictment. It follows that a justice of the ishable for refusing to deliver a transcript of a judgment on tender of the fees, and he may not refuse an adjournment in a proper case or refuse to take an affidavit. A sheriff must levy when he receives a proper writ, it being his protection. § 908. Disregard of duty. A grand juror is indictable for rendering himself incapable of doing his duty by reason of intoxication; but a statute punishing wilful failure or refusal to act, or neglect of duty by an officer, does not cover drunkenness.8 § 909. Neglect of duty.- A public officer may not neglect a duty imposed by law; nor will the fact that others have failed to do acts which alone will make the performed duty effective be a defense.10 If it is not an absolute duty but a conditional one, dependent upon the honest exercise of judgment, the omission to perform is not an indictable offense per se." In line with this doctrine the courts have held liable to indictment a road supervisor for failing to lay out a road,12 but not for failing to keep a road in repair where it is impossible; 13 a commissioner of the poor who neglected his duty," as in failing to supply food; 15 a clerk of the court who failed to publish a report as required by law; 16 a constable for failing to execute a valid process; 17 a justice of the peace for taking unreasonably small bail,18 or failing to take active measures to suppress a riot; 19 an officer for failing to hand over the records to the proper officer as required by law,20 or to pay over to his suc 1 Wilson v. C., 10 Serg. & R. 373; C. v. Genther, 17 Serg. & R. 135. 2 Bailey v. C., 5 Rawle, 59; Wilson v. C., 10 Serg. & R. 373. 3 P. v. Calhoun, 3 Wend. 420. 4 P. v. Brooks, 1 Denio, 457. 5 S. v. Ferguson, 76 N. C. 197. 6 Buck v. C., 90 Pa. St. 110. But the officer may be liable civilly: S. v. Tatom, 69 N. C. 35. 11 S. v. Williams, 12 Ired. 172. 12 C. v. Reiter, 78 Pa. St. 161. 13 13 Moore v. S., 27 Tex. Ap. 439; Parker v. S., 29 Tex. Ap. 372. 14 S. v. Hoit, 23 N. H. 355. 15 S. v. West, 14 Lea, 38. 16 Moose v. S., 49 Ark. 499. 17 S. v. Ferguson, 76 N. C. 197. 18 P. v. Coon, 15 Wend. 277; Resp. v. Burns, 1 Yeates, 370; but not for 7 Pennsylvania v. Keffer, Addison, failure to deliver money in the ab 290. 8 Craig v. S., 31 Tex. Ap. 29. 9 S. v. Williams, 12 Ired. 172; S. v. Woodbury, 35 N. H. 230; S. v. Hoit, 23 N. H. 355. 10 S. v. Woodbury, 35 N. H. 230. sence of a demand: S. v. Coon, 14 Minn. 456. 19 Resp. v. Montgomery, 1 Yeates, 419. 20 Baysinger v. P., 115 Ill. 419. cessor money coming into his hands by virtue of his office;1 but a board of aldermen were held not liable for the failure of their properly constituted agents to remove a nuisance.2 § 910. Permitting a prisoner to escape. It is criminal misconduct on the part of an officer lawfully having a prisoner in charge to wilfully permit him to escape. It is not necessary to charge that the prisoner was held under a warrant if the offense for which he is alleged to have been held is one for which the arrest might be made without warrant.‘ § 911. Public contracts. In the public interest county officers are in some states prohibited from becoming interested in any sale to the county," attorneys are prohibited from buying notes for the purpose of collection, and public officers are punishable for becoming interested financially in public contracts.? 6 § 912. Who deemed officer.- Provisions as to official misconduct or neglect of duty apply to a deputy or a de facto officer; and one who assume the duties of an officer cannot dispute the validity of his appointment when prosecuted for misconduct;10 nor can he set up invalidity of the writ under which he acted when charged with improper conduct or neglect thereunder."1 § 913. Intent.-To constitute criminal misconduct on the part of an officer there must be an intentional act,12 unless the penalty be removal from office; in that case, as the object is to rid the public of an incompetent officer, intent may be imma on road supervisors for failing to perform their duties, it was held that street commissioners were not included: Graffins v. C., 3 Pen. & W. 502. 9 S. v. Maberry, 3 Strobh. 144; S. v. Sellers, 7 Rich. 368; Diggs v. S., 49 Ala. 311; S. v. Goss, 69 Me. 22; 2 Hawk. P. C., ch. 19, §§ 23, 28. 10 S. v. Sellers, 7 Rich. 368. 11 Turner v. S., 5 Blackf. 254. 12 S. v. Pinger, 57 Mo. 243; S. v. Kite, 81 Mo. 97; P. v. Ward, 85 Cal. 585; S. v. Smith, 18 N. H. 91; S. v. Miller, 100 N. C. 543; S. v. Buxton, 2 Swan, 57. terial. If the act be in its nature judicial, the officer can be called to account only by impeachment, unless the misconduct is malicious, in which case it may be indictable; that is, an officer who has a discretion is not liable for errors of judgment, nor for ignorance of the law. A ministerial officer, however, is presumed to know the law. While the act must be knowingly done to constitute official misfeasance, yet it is knowledge of fact rather than of law which must be shown." The nature of the act is often conclusive as to the intent; thus, it is not necessary in charging a justice of the peace with refusing to give a copy of proceedings had before him to allege that he corruptly so refused. So where a particular act or neglect is made criminal, corrupt intent need not be shown.10 While the presumption of innocence will prevail against circumstances of mere suspicion, it may be overcome by proof of delinquencies of a similar nature." 12 § 914. Extortion. This offense consists in the taking by color of office of money or other thing of value that is not due, before it is due, or more than is due. The crime is a species of malfeasance in office. In order that improper influences shall not be brought to bear upon officers with reference to their action, the compensation therefor is fixed by law;" and 1S. v. Leach, 60 Me. 58. bury, 152 Pa. St. 554; S. v. Cansler, 75 2 Brodie v. Rutledge, 2 Bay, 69; S. N. C. 442; U. S. v. Deaver, 14 Fed. R. v. O'Driscoll, 3 Brev. 526. 3 S. v. Hastings, 38 Neb. 584; S. v. Ross, 4 Ind. 541; P. v. Coon, 15 Wend. 277. 4 C. v. Thompson, 126 Pa. St. 614. 5 S. v. Reeves, 15 Kan. 396. 6 P. v. Burns, 75 Cal. 627; P. v. Brooks, 1 Denio, 457. He will not be protected against mistake of law, even by reliance on the opinion of the attorney-general: Dodd v. S., 18 Ind. 56. 7 P. v. Burns, 75 Cal. 627. 595; U. S. v. Waitz, 3 Sawy. 473; 4 Bl. Com. 141; Stephen, Dig. Cr. L., art. 119; 1 Bish. Cr. L., § 573. As to obtaining money by threats, sometimes called in general extortion, see supra, § 728 et seq. In 2 Bish. Cr. L., § 390, the definition is made broad enough to cover demanding as well as receiving. This is in accordance with the statutory definition found in Texas and perhaps in other states: Brackenridge v. S., 27 Tex. Ap. 513; but the common-law definitions, as 8 French v. White, 4 W. Va. 170; given in the cases already cited in S. v. Morse, 52 Ia. 509. 9 Wilson v. C., 10 Serg. & R. 373. 10 S. v. Hatch, 116 N. C. 1003. 11 Bottomley v. U. S., 1 Story, 135. 12 P. v. Whaley, 6 Cow. 661; Williams v. S., 2 Sneed, 159; C. v. Sauls this note, seem uniformly to contemplate the receipt and not merely the demanding. The offense is one at common law as well as by statute: S. v. Jones, 71 Miss. 872. 13 P. v. Kalloch, 60 Cal. 116. |