Concurring Opinion by
Porter, J.:While concurring in the reversal of the judgment, and the awarding of a venire facias de novo, upon the ground that the charge of the court below did not submit to the jury the question of the good faith of the defendant, acting as a magistrate, I cannot assent to all that may seem to be implied by the opinion of the majority of the court. The appellant was mayor of the City of Johnstown, Tested with the criminal jurisdiction of an alderman of *605the city, but1 he also exercised ministerial functions in connection with the police force. While exercising the criminal jurisdiction of an alderman he is liable to be called upon to answer for his acts upon the same principles which appertain to justices of the peace. This appellant was hearing the case of a young woman, nineteen years of age, of foreign birth, and not familiar with our language or institutions, charged with disorderly conduct. He compelled this young woman'to submit to a physical examination as to her virginity, without her consent, as the jury which tried the appellant in the court below found upon sufficient evidence. This act of the. appellant was certainly not within the pale of his authority. We are not here dealing with the question of the liability of this defendant to answer in damages in a civil action brought by the girl upon whom the wrong was committed. This is a proceeding to redress the public wrong, against the administration of justice. It seems to me that the opinion of the majority of the court fails to distinguish between the liability of a magistrate to answer civilly for his mistakes and his liability to be punished for a public wrong. This distinction was well established at1 common law, and it has not been changed by statute in Pennsylvania.
“Justices of the peace are not punishable civilly for acts done by them in their judicial capacity, but if they abuse the authority with which they are entrusted, they may be punished criminally at the suit of the king by way of information or indictment, But in cases Where they proceed ministerially rather than judicially, if they act1 corruptly, they are liable to an action at the suit of the party, as well as an information at the suit of the king. The court of king’s bench, however, will never grant an information against a justice of the peace for a mere error in judgment; for even where a justice does an illegal act yet although the judgment was wrong, if his heart was right, if he acted honestly and candidly, without oppression, malice, revenge or any bad favor or *606ill intention whatsoever, the court will never punish him by the extraordinary course of information but leave the party complaining to the ordinary legal remedies by action or by indictment; but if they act improperly knowingly, an information shall be granted”......“But if a justice issue a warrant totally illegal, as if a pauper return without a certificate to the parish from Avhence he was removed, and the justice make a warrant to commit him to the house of correction, there to remain until he is discharged by due course of law, instead of pursuing the statute under which authority on this subject is derived, he is liable to an action of false imprisonment although he did not, in granting such warrant, act intentionally wrong”: Hawkins’s Pleas of the Crown, book 2, chapter 8, sections 74 and 85. “Whenever the conduct of a justice of the peace is challenged because of his action in official capacity, either by way of indictment, or criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it1 had proceeded; whether from a dis honest, oppressive, or corrupt motive under which description fear and favor may generally be included, or from mistake or error. In the former case alone, they have become the subject of punishment”: 3 Barnewall & Alderson, 432. The existence of these common law principles was recognized in the Act of March 21, 1772, section 1; First Smith’s Laws, 364; which requires that written notice be given to a justice of the peace, by a private party, before any action is brought against him for anything done in the execution of his office, for it expressly declares that the reason for the enactment was that justices of the peace “should be (as far as is consistent with justice and the safety and liberty of the subjects over whom their authority extends) rendered safe in the execution of the said office and trust; and whereas, it is also necessary that the. subjects shall be protected from all willful and oppressive abuse of the *607several laws committed to the care and execution of the said justices of the peace.” This statute is still in force and refers only to civil actions, and we find nothing in the legislation of Pennsylvania to relieve justices of the peace and magistrates, exercising similar jurisdiction, from liability to answer criminally for their misconduct upon the same principles which prevailed at common law.
The act with which this defendant was charged was clearly outside the scope of the authority with which he was invested and was in its very nature oppressive. If the jury found that he compelled the young woman to submit to the examination, whether forcibly or under duress of imprisonment, it was entirely competent for the jury to infer, from the character of the act, that the motive was bad, oppressive and a willful abuse of power. This inference was, however, to be drawn by the jury, under proper instructions by the court as to the questions upon which it was their duty to pass.