<p>1. A presentment which charges a justice of the peace with “malpractice,” without the addition of the words “in office,” is demurrable.</p> <p>2. A presentment charging a justice of the peace with malpractice, which does not show by the entry of the solicitor general or the sheriff, that a copy thereof had been served on the defendant before the same was laid before the grand jury, and that he had been notified to appear with his witnesses, is demurrable.</p> <p>3. A presentment which simply charges a justice of the peace with being drunk whilst presiding in his court, is demurrable. It should set forth the wrong done by some official act or omission to act, resulting from such drunkenness.</p> <p>4. A justice of the peace cannot be arraigned on a presentment for malpractice in office. An indictment is the proper method of charging him with such offense, as prescribed in the Code, section 4504.</p> <p>Bleckley, Judge, concurred.</p> <p>Jackson, Judge, dissenting.</p> <p>1. Drunkenness on the bench is “conduct unbecoming an uptight magistrate,” in the sense of section 4504 of the Code.</p> <p>2. An indictment or presentment which charges the defendant “with the offense of malpractice,” without adding the words “in office,” is sufficiently technical in naming the offense under our Code, and ought not to be quashed for the omission of those words.</p> <p>3. Where, in the body of the indictment or accusation, the charge is set out, “that the said Hawkins, on the 10th day of April, 1874, then and there, in the nine hundred and nineteenth district, being then and there a justice of the peace in and for said district, when then and there presiding in the justice’s court of said district, then in legal session, was guilty of conduct unbecoming an upright magistrate, by being then and there drunk voluntarily, from a long continued and excessive use of intoxicating liquors,” such charge is set out “ so plainly that the nature of the offense charged may be easily understood by the jury,” and therefore, by authority of section 4626 of the Code, the court below was right in sustaining it as “ sufficiently technical and correct.”</p> <p>4. The grand jury not only may present an offender for malpractice in office, but it is their duty to do so under section 3917 of the Code, more especially in cases like that at bar, where a private person might feel reluctant to see to it that the law was vindicated at the hazard of offending a magistrate in</p> <p>■ power and his friends and sympathizers. The fact that the prosecutor is mentioned in section 4504 as having the right to appear before the grand jury, applies only to the case where there is a prosecutor, and does not render section 3917 inapplicable to this class of cases, and thereby preclude the grand jury from prosecuting by presentment this violation of the law.</p> <p>5. Whilst, under section 4504, it is the right of the accused, with his witnesses, to appear and be heard before the grand jury, the fact that he did appear and was heard need not be alleged in the indictment, nor need it be indorsed on the same. It is enough if it appear to the satisfaction of the court that he was furnished with a copy of the indictment or presentment before the grand jury acted, and that he did appear, and was heard before them.</p> <p>6. The jury having found the defendant guilty, and the verdict being sustained by the evidence, and the law having been properly given to the jury in charge, in my judgment he should receive the punishment the law imposes — especially that part which removes him from office — and the judgment of the court below should be affirmed.</p>
