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time later, and it was then done not in consequence of the complainant's advice or persuasion, but upon considerations of convenience in regard to lodging the prisoners. The testimony
. shows, however, that the male prisoner was removed from the apartment of the females after a day and a night.
William Samples was convicted of a second offence of petit larceny and was sentenced to be imprisoned two years in the stateprison at Mount Pleasant. The sheriff, at the prisoner's request made in a gross form, removed him from his proper jailroom to another apartment, and introduced into that apartment a woman, locked the door, and left them during the night, all other persons being excluded. The sheriff next morning dismissed the woman from the jail and restored the prisoner to his accustomed apartment, and the next day removed him to the stateprison. The sheriff pleaded, that as he had understood and believed the woman was the prisoner's wife. It appeared in evidence that the prisoner had a lawful wife living, whose proper home was about twelve miles from the jail — that he had been living two years with the woman admitted to him by the sheriff
- that she was, and for years had been, a common prostitute, and though she had cohabited with the prisoner, yet she did not assume his name nor acquire the reputation of being his wife. These facts are notorious.
The sheriff's defence rests in his denial that he had personal knowledge of the prisoner's marriage, and his alleged belief at the same time that the woman admitted to the jail was the prisoner's wife. But, even if it were true that the sheriff did not know that the prisoner was not married to the woman admitted, or that the prisoner was lawfully married to another, yet that officer had abundant reason to know the prisoner's character and that of the woman admitted ; and her admission under such circumstances, and for such an object, was not only a violation of law, but an indecent pandarism, scarcely capable of palliation.
But the sheriff's long acquaintance with the prisoner, and his constant residence in the place where the prisoner lived, raise a strong presumption that he could not have been ignorant of what was so well known to others; and it is proved by three witnesses that he knew affirmatively what others had known by rumor only.
Allowing full weight to his denial and to all the circumstances detracting from the testimony of his accusers, there is still in the circumstances of the case and in direct testimony a preponderance against the sheriff's denial. Prisons and jails are the last places in which such demoralizing indecencies ought to be permitted. The public officer who does not prevent them abuses his trust, while direct countenance and agency in their commission deserve marked reprobation.
It appears, from this review of the case, that Cyrus Smith, Esq., sheriff of Schoharie county, is convicted of such misconduct. A supersedeas will therefore issue removing him from that office.
REMOVAL OF THE SHERIFF OF ONEIDA.
ALBANY, DECEMBER 19, 1842.
David MOULTON, sheriff of Oneida county, in answer to charges of official misconduct, admits the following facts, to wit: That on the third day of January last, he presented to the governor a copy of an indictment, found by the grand jury of that county, charging a person then in the District of Columbia with having committed a crime, and a petition from the district attorney praying that a requisition might be issued to the said sheriff, authorizing him to demand and receive the accused as a fugitive from justice, and convey him to this state. That the governor, doubt
, ing the obligation of the president of the United States to comply with such a requisition, consented that the said sheriff should proceed to Washington and ascertain the president's opinion on that subject, and engaged to send a requisition to the sheriff on being advised of the president's acknowledgment of an obligation to surrender the fugitive. That the sheriff, having artived at Washington, ascertained the president's willingness to surrender the fugitive, and communicated the fact to the governor; the sheriff received in reply a letter from the private secretary, informing the sheriff that the governor was absent from Albany, but that his attention would be called to the subject on his return. That the sheriff thereupon informed the accused of such an indictment, and that the sheriff was to receive a requisition authorizing him to convey the accused to New York; whereupon an agreement was made and executed between the sheriff and the accused, whereby the latter delivered to the sheriff two checks on the land-office amounting to $60, and notes amounting to $120, thus paying and engaging to pay the sum of $180. Of this sum the sheriff was to retain $80 for the expenses of his journey to Washington, and to pay the remaining $100 to the prosecutor of the indictment. The sheriff agreed to return to Oneida
county, and to obtaiu from the prosecutor a release of his demand against the accused if the checks and notes should be paid; one of the notes was drawn at five months — the other note and the checks were payable immediately. The sheriff admits that he left the checks and notes for collection with a friend in Congress, who was also instructed to take the expected requisition from the postoffice and send the same to the sheriff at Albany; that on his arrival at Albany he found a requisition on the president for the surrender of the fugitive, which process had been sent to and returned from Washington, as the sheriff had anticipated.
This process authorized the sheriff to demand from the president a surrender of the fugitive, and convey him to this state, and gave no other instructions, direction, or authority, whatever. The agent who executes such process is legally entitled to compensation at the rate of three dollars per day, and remuneration of all his necessary expenses, while performing the service. The sheriff further admits, that on receiving the requisition at Albany, he availed himself of it to claim and receive at the treasury pay. ment of the expenses of his journey to and from Washington. The books in that department show that he received payment for the expenses of his journey from Rome, his place of residence, to Albany, thence to Washington, thence to Albany, and thence to his residence in Rome, and three dollars per day for each day of his absence from that place; the whole amounting to $130.50.
Tlie sheriff further admits and shows, that after thus returning from Washington without waiting for the requisition, and leaving the accused at large, and after having received payment from the treasury for his services as agent of the state, he had an interview with the prosecutor, and proposed to him to accept the sum of $100, out of the avails of the checks and notes, and in consideration thereof release his demand against the accused; but that the prosecutor dissented and insisted on a greater sum as a condition of compromise, and the sheriff thereupon relinquished to the prosecutor all claim to the entire avails of the checks and notes, and took from him an assignment of the claim and transmitted it to Washington, to be released to the accused when the checks and notes should be paid.
Upon this statement of facts, the governor is of opinion: First, that although the sheriff, disappointed by the delay of the requisition, might have been excused for relinquishing the public agency he had solicited and assumed, and perhaps might properly have returned to Albany and claimed payment for his time and expenses, yet that he committed a violation of duty in communicating knowledge of the indictment to the accused. The law declares that no grand juror, constable, district attorney, clerk, or judge, shall disclose the fact of an indictment to a person charged with felony and not in custody, and makes a violation of that enactment a misdemeanor, but expressly excepts sheriffs and other public officers, when they necessarily disclose the knowledge of an indictment in executing process or otherwise in the performance of an official duty. The spirit though not the letter of the law applied to the case under consideration. As if conscious of this, the sheriff offers in excuse, that being desirous of returning to New York, and being uncertain when the requisition would arrive at Washington, he disclosed the object of his mission with the purpose of inducing the accused to go
voluntarily to New York, and give bail for his appearance to answer the indictment. The accused assented to the arrangement; but the sheriff receded from it, because he doubted whether, being without process, he could obtain reimbursement of the expenses of carrying the accused to New York. The sheriff's conduct, thus far, might easily be excused in consideration of the circumstances in which he was placed.
In the second place, the governor is of opinion that the sheriff was guilty of a palpable violation of duty in undertaking to compound the offence for which the accused was indicted. It is true the sheriff says he undertook only to settle the private claim of the prosecutor, but it is expressly admitted that the settlement was an alternative of the previous arrangement, by which the accused was to go to New York and give bail to answer the indictment; besides, the motive to the settlement, and its anticipated effect of silencing the prosecutor, were too apparent to be misunderstood by the sheriff.
The natural sympathy which even ministers of justice can not repress, might excuse this extraordinary proceeding of the sheriff, if no personal considerations mingled with those
sympathies. But the sheriff stipulated to receive the eighty dollars for his humane agency in compounding the offence. The law declares that if any sheriff, jailer, coroner, marshal, or constable, shall wilfully or corruptly refuse to execute any lawful process