Casey v. State

| Ark. | May 31, 1890

Cockrill, C. J.

The appellant, a county judge, was convicted of non-feasance in office for allowing against the county a claim to which no affidavit was attached. The statute requires an affidavit, and a section of the same act provides that: “Any judge of the county court, or clerk of said court, who shall willfully violate any of the provisions of this act, or neglect or refuse to perform any duty herein imposed, shall be deemed guilty of a misdemeanor, and upon conviction thereof in a court of competent jurisdiction, shall be subject to a fine of not less than ten nor more than one thousand dollars, and shall be removed from office." Mansf. Dig., sec. 1746.

Non-feasanceCounty judge-Sufficiency of in dictment. ; The indictment charges only that the act was negligently ' done. It does ■ not even follow the language of the statute and charge that the act was done willfully. But the act done by the judge is a violation of a positive provision of the law, and, by the terms of the section quoted, it must have been willfully done to constitute a criminal offense. It was misfeasance and not non-feasance in office. It was not a total neglect to perform a prescribed duty, but a lawful act done in an improper manner, that is, upon insufficient evidence.

But conceding that the charge' was made under the second provision of the act directed against a neglect to perform a duty, the same objection lies to the indictment. Nothing less than a charge in the language of the statute, that is, that the neglect was willful, can answer. It is not probable that the legislature intended to make a violation of a positive provision of the law criminal, only when the act is willful, but to punish a casual and unintentional omission to do the act in a proper manner. See State v. Prescott, 31 Ark., 39. Neither the reason of the thing nor the grammatical construction of the language employed requires that ‘‘willfully" as used in the statute should qualify "violate" only. No case should be brought within a penal statute unless completely within its words, and every reasonable doubt about the meaning of the language should be resolved in favor of the accused.

Reverse the judgment, and remand the cause for further proceedings.