#### STATE vs. JOHN ZACHARY.

In an indictment against a Justice of the Peace, for corruption in an act done in virtue of his office, it is not sufficient to charge that the act was done corruptly; the facts must be set out in which the corruption consists.

It is a misdemeanor in office, for a Justice of the Peace to sell or transfer a judgment rendered by himself or by any other Justice, if in his possession, mrtute officii, the law making it his duty to keep and preserve such judgments.

(The case of Cunningham v. Dilliarcl, 4 Dev, & -Bat., 351, cited and approved.)

The defendant was tried upon the following indictment-

<( The jurors for the State upon their oath present, that on the 4th day of October, 1845, John Zachary, late of the county of Macon, in the State of North Carolina, was one of the Justices of the Peace, in and for said county, and has continued to be such from the said 4th day of October, in the year aforesaid, up to the taking of this inquisition ; and the jurors aforesaid, upon their oath aforesaid, do further present., that the said John Zachary being a Justice of the Peace as aforesaid, on the said 4th day of October, 1845, with force and arms, in the county aforesaid, unlawfully., wilfully, deceitfully and corruptly did give judgment as a Justice of the Peace as aforesaid, in favor of one Philip Gallispie, for twenty-two dollars, with interest from 1st. September, 1843, against one Baroh Norton, without the knowledge and consent of the said Philip Gallispie and Baroh Norton, and with the intent to injure and defraud the said Baroh Norton ; and that the said John Zachary, in furtherance of his said fraudulent intent, wickedly, knowingly and corruptly bargained and sold the said false judgment for a valuable consideration, to one John Allman, without the knowledge and consent of the said Philip Gallispie, to the great damage of the said Baroh Norton, and against the peace and dignity of the State.”

Upon the trial, before Ellis, Judge, at Macon, on the last Spring Circuit, one Norton was introduced as a witness for the State, and stated that in 1845 he confessed a judgment before the defendant, an acting Magistrate for the county of Macon, for the sum of $-, in favor of Philip Gallispie, on a note which he had previously executed to said Gallispie, (a copy of which ac*433companies the case.) This judgment he paid off in 1849 to one Barnes, a constable ; and that afterwards, in 1850, one Allman applied to him for the payment of another judgment, purporting to have been confessed by the witness before the defendant on the same note, (a copy of which accompanies the case.) That the said note was affixed to this judgment. He refused to pay it at first, but finally compromised the matter with Allman. That he never executed but one note to Gallispie, and did not confess this latter judgment. That the note was in the possession of the defendant when he confessed the first judgment. Gallispie testified that Norton had never, at any time, executed to him any note except the one in question ; that early in the year 1845, he placed the note in the hands of the defendant as a Justice of the Peace, and told him Norton would call and confess judgment on it; and about eighteen months thereafter he called on the defendant for the judgment., who delivered it to him, and the note was left with the defendant; that this judgment was handed to one Erwin, and finally passed to one Barnes, a constable, from whom the witness received the money in 1849. The witness never authorised the defendant to sign any other judgment, or to take any other proceedings on the note than here stated. Erwin testified that Gal-lispie gave to him the first judgment about the time stated, and that he passed it to one McKinnice; and McKinnice testified that after receiving it from Erwin, and a regular renewal of the same, and'execution, he gave it to Barnes to collect for the plaintiff therein, Gallispie. Barnes testified that he received the first judgment from McKinnice, and the latter judgment rendered on it. That in 1849 he received from the defendant in the judgment, Norton, the full amount of said judgment and costs, for which he gave his receipt at the time. Allman testified that he found the latter judgment with the Gallispie note folded in it among his other judgments and notes ; that he had no knowledge of the manner in which he came by it, or from whom he received it; that Ire never had any dealings with defendant so far as he could recollect ; and that he first made known to Norton the fact of his having said judgment about two years before the present trial. Two.other witnesses testified that the signatures to both judgments *434and the body of the instruments were in the handwriting of the defendant.

The defendant’s counsel insisted that there was no evidence to show a corrupt intent in rendering the second judgment; but his Honor believing there was evidence showing such intent, charged the jury that if they believed the defendant rendered the second judgment without authority and without the knowledge of Norton, knowing at the time that he had previously rendered a judgment on the same note, and that he did this with the fraudulent and corrupt design to injure said Norton, he would be guilty. There was a verdict of guilty accordingly, and after an ineffectual motion for a new trial, the defendant moved in arrest of judgment, which being overruled, and judgment rendered on the verdict, he. appealed to the Supreme Court.

N. W. Woodjin, for the defendant.

Attorney General, for the State.

Nash, C. J.

Every indictment must contain such a statement of facts as to enable the Court, before whom it is tried, to see that the law has been violated ; and when an evil intent, accompanying an act, is necessary to constitute a crime, the intent must be alleged in the bill of indictment and proved. 6(h East. 474. The defendant in this case is a Justice of the Peace, an’d he is prosecuted for corruption in the discharge of a judicial duty. The indictment charges that the defendant “ unlawfully, wilfully, “ deceitfully and corruptly*, did give judgment as a Justice of the “ Peace as aforesaid, in favor of one Philip Gallispie for $22, “ with intent, &c., against one Baroh Norton, without the knowl- “ edge and consent of the said Gallispie and Baroh Norton, with “intent to injure and defraud Baroh Norton.” It then alleges and states the manner in which this intent was carried out, to wit, “ that he sold the said false judgment for a valuable consideration to one John Allman, &c.” The charge, stripping it of its verbiage, is that the defendant gave the judgment complained of corruptly. It is not sufficient in an indictment against a Justice of the Peace for an act done in discharge of judicial duty, to allege that the act was corruptly done : — it must state in what the *435corruption consisted. Accordingly, here the indictment charges that the judgment was given without the knowledge or consent of either Gallispie or Norton, and with an intent.to defraud the latter, and in pursuance of that intent, sold to one Allman. We are bound to presume, from the charge in the indictment, that there was a cause of action against the defendant Norton, and that a warrant had been duly issued and served upon him ; and that it was in the possession of this defendant, ..in his official character. Otherwise he could give no judgment legally. Does the . giving the judgment in the absence of the parties and without their knowledge, in itself, constitute corruption ? Certainly not; because it might have been in good faith, and if so, an indictment cannot be supported. It is the conception, coupled with the act the law seeks to punish criminally. Cunningham v. Dilliard, 4 Dev. & Bat. 351. To further show the corrupt motive of the defendant, the indictment charges that he sold the judgment to one Alhuan for a valuable consideration. It is certainly a misdemeanor in office for a Justice of the Peace to sell or transfer a judgment, given by himself or any other magistrate. Tire law makes the magistrate who gives a judgment its custodian.’ He is bound officially to keep in his possession both the warrant and judgment, and the evidence of the debt — in other words, all these papers are in the custody of the law. It was proper, therefore, that such charge or statement should appear upon the face of the indictment, and in fact, it constituted the gist of the offence said to be perpetrated by the defendant; and the State was bound to prove it. Upon the trial below, Allman was introduced as a witness in behalf of the prosecution, and he swore that he found the judgment, with the note in it, among his other judgments and notes j that he had no knowledge how he came by them, or from whom he received them ; and that he never had any dealings with the defendant so far as he could recollect. Allman being the only witness to prove this allegation of the indictment, there was in fact no evidence to go to the jury upon either allegation, and they ought to have been so instructed ; for whether they believed Allman or not., the State was equally without evidence as to the alleged fact of the sale.

It is but justice to the defendant to state that the papers accom*436panying the case furnish some evidence that he intended no fraud in giving the second judgment, which is the one complained of. The two papers containing the warrant, judgment and execution are exactly alike, one being a copy of the other, and both directed to the same officer, William Lambert.

His Honor below committed an error in submitting to the jury the question of a sale to Allman ; and for this error the judgment must be reversed, and a venire de novo awarded.

Per Curiam, Judgment reversed, and a venire de novo awarded.