Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1876-05-16
THE STATE Va.

Most Of our readers have been adj
vised of the fact that the Supreme
Court has affirmed the proceedings and
Judgment in the Ease Of M. Borowsky,
formerly Public Adminlstr ator of Eu-
reka county. AS a matter of interest
to the community, we give a synopsis
of the decision of the Supreme Court,
which was pronounced by Justice
Beatty and concurred in by a full
bench.
Counsel for petitioner claimed that
the Court below had exceeded its ju-
risdiction in W ways: "First, in try
ing and convicting him upon an in
dictment which charges no offense.
and therefore, of course, no offense of
which the District Court could have
jurisdiction; and second, in adjudging
him guilty and imposing sentence
without the verdict of a legal jury"
The gist Of the first point is this:
The statute provides that, "For any
willfui m~isdeneanor in office any Pub
lie Administrator may be indicted.
tried, and, if found guilty, fined in any
sum not exceeding 81, 600, and removed
from office" but it is claimed by
sci that ''there is no act or omission of
a Public Administrator to which any
penalty has been affixed by law, and
consequently there is no such thing as
a misdeineanor in that office"
But the Court says: 1.-The fault of
this argument, / think, consists in at.
L fefht,finfv fk tha x,nrI ntc1osnoonn nc
used ia the statute, its technical sense
of a species of crime. 1t is evident. l
think, that it is used in its more COM
~prehensive sense of misbehavior, mis-
conduct, violation OF duty; for other
wise the word 'willful," by which it
Is qualified, becomes entirely super
fiuous. Every crime Is necessarily
willful, but misconduct or violation of
duty is not. Taken in the latter sense,
the word misdemeanor is properly
qualified by the word willful; in the
former Specification the expression in
wolves the worst sort of tautoloyy.
Besides, in m case the whole provis-
ion becomes utterly meaningless, while
in the ott err the construction is plain
and sensible. The statute makes a
willful misdemeAnor-in its popular
sense Of misconduct-a technical mis-
demean0r or crime, by attaching the
penalties OF fine and removal from of
flee. Its object was not to impose ad-
ditional penalties in the case Of INSIDE
meanors already defined, but tn make
that criminal which before had not
been so, by the ordinary form of at
taching a penalty and thereby forbid
ding IL. Every willfui violation of his
official duty by n Public Administra-
tor il therefore a misdemeanor, pun
ishable by a fine of not exceeding
s2,000 and removal from office. OF
such ems il Is not questioned that
the District Court has Jurisdiction"
In support of this point counsel fur
Their argues that the misappropriation
was charged 10 have been committed
after the expiration of the petitioners
term, and was therefore not a misde-
meanor in office. The Court holds in
substance that a Public Administrator
il liable under the section of the stat
ute quoted above until he has paid
over all moneys and is regularly dis
charged l.y the District Court.
The second point IL that the verdict
was not a verdict OF a legal jury. BY
consent of counsel. alike for the Stale
and the defendant. the ease was tried
w tuiy VI Cstftu tifths III u - "
claimed on certiorari that u legal jury
must consist OF twelve men. and that
after putting himself on his country
defendant could not waive his right TO
such jury and We tried by eleven. The
Court holds adversely To the Petitioner
on this point also. and after reviewing
the authorities concludes its opinion ~
follows: THE weight of authority
seems o be that in prosecutions for
misdemeanors, lat least, the Court may,
by the defendants consent, proceed to
try him with less than the full num-
her Of jurors. / am satisfied that in SO
deciding there l. M injustice done in
this case nor risk of injustice in others.
II rests with the defendant 10 protect
himself by insisting upon his right,
or by simply not waving it.
The proceedings under review should
be affirmed and IL il So ordered.