Smith v. Ling

Searls, C. — The defendant, R. A. Ling, was a justice of the peace in and for Los Angeles township, county of Los Angeles, from January, 1883, to January 5, 1885.

[325]This is a proceeding under section 772 of the Penal Code, which relates to the offense of “ charging and collecting illegal fees ” by officers, and for the refusal or neglect to “perform the official duties pertaining to his office.”

The information, which was filed after the defendant ceased to be an office-holder, is quite lengthy, and contains so many statements of fact by way of recital only, and so much that is indefinite and uncertain, that we shall not attempt a synopsis of the facts.

Defendant moved the court to set aside the information upon several grounds. The motion was granted, and judgment rendered in favor of defendant.

The accusation or information was defective in these respects:—

1. It cannot be determined therefrom, with any certainty, whether defendant is sought to be charged with “charging and collecting illegal fees for services rendered,” or with refusal or neglect to perform the official duties pertaining to his office as a justice of the peace.

2. Treated as an information for charging illegal fees, it fails except by way of recital to show that such fees were either illegal, or that they were collected.

3. There is no charge that defendant knowingly, willfully, or corruptly charged and collected illegal fees, or neglected to perform any official duty. (Triplett v. Hunter, 50 Cal. 644.)

4. Defendant’s term of office having expired January 5, 1885, and the accusation not having been filed until May, 1885, defendant was not an officer at the date of the institution of the proceedings.

The summary proceedings provided by section 772 of the Penal Code are aimed at officers as such, and result, where the defendant is found guilty, in his being deprived of his office.

The statute also provides that a judgment of five hundred dollars shall be éntered in favor of the informer.

[326]