State v. . Wynne

24 S.E. 216, 118 N.C. 1205

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

The defendant Wynne was indicted, under The Code, sec. 991, for unlawfully receiving and consenting to receive money for an illegal purpose, to-wit, to discharge (1207) a prisoner then in his custody for a crime committed, said Wynne being then a special constable, duly appointed under the law of the State; and the defendant Oxendine is indicted for being present, aiding and abetting the unlawful act of the defendant Wynne. The defendants were convicted, and appealed. The defendants contend that the indictment was insufficient, because it uses the words "did receive and consent to receive," whereas the act (section 991) uses the words "receive or consent to receive." "Receiving" necessarily implies consenting to receive, and the Court has held that the indictment, in form like the present, was sufficient, and the reasons given in full. S. v. Van Doran, 109 N.C. 864. The defendant also insists that a constable specially deputized was not an officer, within the terms and meaning of the statute. It is not necessary for us to enter into the question of the regularity of defendant's appointment and whether he was in office or not, for the reason that he undertook and exercised the duty of an officer, and is therefore entitled to its emoluments and liable to the penalties attaching to a failure to discharge the duties of such office. This has long since been settled in a case in which Ruffin, C. J., used the following explicit language: "A person who undertakes an office and is in office, though he might not have been duly appointed, and therefore may have a defeasible title or not have been compelled to serve therein, is yet, from the possession of its authorities and the enjoyment of its emoluments, bound to perform all the duties, and liable for their omission, in the same manner as if the appointment were strictly legal and his right perfect." S. v. McEntyre,25 N.C. 171.

It is not denied that the defendant received the warrant and arrested the defendants and had them in his custody, and (1208) discharged them for a consideration.

A justice of the peace, under The Code, sec. 645, may, "in extraordinary cases," appoint anyone, not being a party, to execute his mandate, and his decision is conclusive as to when such cases arise. S. v. Dula,100 N.C. 428. The charge of the court fully covered the contentions made on the trial, and there was no exception to it.

No Error.

Cited: S. v. Cole, 156 N.C. 623.