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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, doubting 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 arrived 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 obtain 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 payment 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.
The 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
directed to him, requiring the apprehension or confinement of any person charged with a criminal offence, or shall corruptly and wilfully omit to execute such process by which such persons shall escape, or shall receive any gratuity or reward, or any security or engagement for the same, to procure, assist, connive at, or permit any person in his custody on any civil process, or on any criminal charge or conviction, to escape, whether such escape be attempted or effected or not, the officer so offending shall, on conviction, be adjudged to suffer fine and imprisonment, and be for ever disqualified for civil trusts.
It is not perceived how the sheriff could exempt himself from the application of the spirit of this statute, otherwise than by assuming the ground that he was beyond the jurisdiction of the state, and had no process whatever. But he was, nevertheless, consciously acting as an agent of the state. He was at Washington by virtue of verbal executive directions, which were to be authenticated by a requisition hourly expected; and on his return to Albany he presented that process to the comptroller, together with his affidavit that he had travelled to and from Washington, and sojourned there by virtue and in execution of the process.
Thirdly, the governor is of opinion that the sheriff was guilty of a want of moral honesty and official fidelity, in demanding and receiving payment at the treasury for duties which not only he had not performed, but which, to the scandal of public justice, for a pecuniary consideration, he had bargained not to perform. The sheriff excuses the delinquency by saying that he believed, from knowledge of the circumstances of the accused, that the notes received from him, amounting to $120, would not be paid, although the checks would be paid, and the avails of those checks might be paid to the prosecutor. But the state does not pay prosecutors, nor compound felonies, nor authorize sheriff's or agents to do so. The obligations of the state to pay the sheriff for executing its process, could not depend upon any such contingency as the failure of the accused to perform an illegal agreement into which he entered to screen himself from trial.
Fourthly, the governor is of opinion that the sheriff was guilty of improper conduct, in executing the agreement with the accused, by obtaining a discharge from the prosecutor; and deems it worthy of especial notice, that, in effecting that object, the