Commonwealth v. Rupp

Supreme Court of Pennsylvania

Commonwealth v. Rupp

9 Watts 114

DecidedSeptember 15, 1839

StatusPublished

This text of 9 Watts 114 (Commonwealth v. Rupp) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Rupp, 9 Watts 114 (Pa. 1839).

Pincite

Opinion

Per Curiam:

This indictment is drawn with unusual looseness. Though the. defendants are designated as the duly elected and appointed commissioners of the county, the mode of their election is not set out—a matter which has been held necessary in an indictment against a constable for not serving, because if not legally elected, he is not bound to take the office—and the defendants, if not elected, would be dispunishable for appointing a disqualified person to the office of treasurer; for though the fact that they acted in their offices, would be evidence of election to them, it does not itself constitute the fact of election; and it is necessary in an indictment to aver the fact itself, and not to state the proof of it. The same remarks are predicable of the manner in which the treasurer’s previous election is stated. Indeed it is not stated at all, except by inference and implication. But as the special manner of the whole fact must be set forth, that part of the case is one which ought to have been stated with time, place, and circumstance, in order that the court might see that the office had not expired three years before the incumbent’s appointment to the treasurship. The act of appointment was not unlawful of itself; and it was necessary to set forth positively the particular circumstances and relations which made it so. Nor does the special finding of them by the traverse jury supply the deficiency: they ought to have been found by the grand jury also, who are the constitutional accusers, and whose business it is, to specify the particulars of their accusation. Neither the election of the auditor, nor the duration of the office, is distinctly set forth. The defendants are charged with having appointed him to the office of treasurer, “ within, and before the expiration of three years next after he, the said William M’Laughlin had been, and was, and then holding the office of county auditor,” &c. It is impossible to sustáin an allegation so vague and contradictory.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam:

This indictment is drawn with unusual looseness. Though the. defendants are designated as the duly elected and appointed commissioners of the county, the mode of their election is not set out—a matter which has been held necessary in an indictment against a constable for not serving, because if not legally elected, he is not bound to take the office—and the defendants, if not elected, would be dispunishable for appointing a disqualified person to the office of treasurer; for though the fact that they acted in their offices, would be evidence of election to them, it does not itself constitute the fact of election; and it is necessary in an indictment to aver the fact itself, and not to state the proof of it. The same remarks are predicable of the manner in which the treasurer’s previous election is stated. Indeed it is not stated at all, except by inference and implication. But as the special manner of the whole fact must be set forth, that part of the case is one which ought to have been stated with time, place, and circumstance, in order that the court might see that the office had not expired three years before the incumbent’s appointment to the treasurship. The act of appointment was not unlawful of itself; and it was necessary to set forth positively the particular circumstances and relations which made it so. Nor does the special finding of them by the traverse jury supply the deficiency: they ought to have been found by the grand jury also, who are the constitutional accusers, and whose business it is, to specify the particulars of their accusation. Neither the election of the auditor, nor the duration of the office, is distinctly set forth. The defendants are charged with having appointed him to the office of treasurer, “ within, and before the expiration of three years next after he, the said William M’Laughlin had been, and was, and then holding the office of county auditor,” &c. It is impossible to sustáin an allegation so vague and contradictory.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

9 Watts 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rupp-pa-1839.