The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-04-07
A"RECORD" QUASHED
The Youmans and Nc.
Coobery Gutenberg In
dictment Set Aside.
JUDGE LIPPlNCOTTs CONCLUSIONS
Says 1t Was Defectiyely Drawn
Motion to Quash That Against
Superintendent Smith.

Judge Lppineott today decided the motion
made by Ex-Judge Allan L. McDermott, last
Saturday, to quash the Indictment against
Justices of the Peace Joseph j. McCoobery
and Albert Youmans. The Court held that
the indictments were insufficient and said
An examination of this Indictment reveals
that with more orderly pleading, and with
accuracy and sufficiency of averment it
could have been sustained as an indictment
for conspiracy to obstruct and to
prevent the laws of this State
relating to the maintenance of
disorderly houses The Indictment with more
particularity of averment contains all the
elements OF conspiracy. But there IS no
formal averment of conspiracy, no count for
conspiracy, nor any overt acts charged
There is no question that Justice of the
Peace is indictable for misbehavior in office.
This is not so when he acts judicially in the
matter before him, but it would appear from
the decisions that when his action is
knowingly and wilfully intended to sustain,
maintain and support others in course OF
criminal conduct, and with such intention
he SO acts as to obstruct the administration
OF the law and the administration of justice,
then it Is misbehaviour in Office and this in
dictment contains all the general requisites
of that offence, but no sufficiency or accu-
racy of ayerment of facts necessary to an
indictment for that offence
CAN'T BE SUSTAINED.
"There appears to be no contention on the
part of the State that the indictment can be
sustained, and although it appears to have
been framed and drafted by the Assistant
Prosecutor, and signed by the Prosecutor of
the Pleas, neither of these officials, as l
understand the matter, assumes the response
bility of the drafting Of the Indictment; but
with this matter the Court has but little to
do. The duty Of the Court is to pass upon
the sufficiency of the indictment as it is pre-
sented to the Court, and not as it might have
been framed.
sBesides these objections to this indict-
ment thus stated, there is also another which
renders the Indictment invalid. The in
dictment in form is for misbehavior in
Office, and as to each of the Justices of the
Peace, this is distinct offense. They
tainly, in relation to any act or
any conduct which requires separate
action on their part Their official positions
are distinct and Independent of each other,
and if either OF them has misbehaved in his
office, an Indictment will lie against him,
if both have misbehaved in their respective
official positions, an Indictment will lie
one Indictment for the offenses.
A NATURAL CONCLUSION.
This conclusion needs no authority to
sustain it. 1t must appear naturally to be
the true rule. But think the authority of
the case of State VS.. Stevens and others, IA
Ohio. 1856, is an authority clearly establish
ing this position So far as Justices of the
peace are concered, as to any crime alleged
in the Indictment, the offenses are neces-
sarily several, and there cannot be a join
der. Wharton's Criminal Pleading, section
302.