93 Ky. 507 | Ky. Ct. App. | 1892
delivered the opinion of the court.
The appellant being tlie jailer of Laurel county, and while acting as such, toot into his custody, under a capias properly issued, the-body of G. ~W. Goff, the latter having-been sentenced to confinement in the county jail until he ■satisfied certain fines imposed upon him for violating the
It seems from the testimony that the jailer was a little too lenient toward the prisoner, and placed him occasionally at work not authorized by the statute. He permitted or required him, when out of jail, to carry water to those on the inside of the jail, and occasionally to the house in which the jailer resided for the use of his family. He was also required to clean up the court-house, but for much of the time was at work on the fence around the public square and repairing a well that was of a public nature.
The Commonwealth, instead of proceeding under the statute imposing a light penalty, to be recovered by warrant, indicted the appellant for misfeasance in office. He was tried under the indictment, found guilty, and his fine assessed at fifty dollars, for which a judgment was rendered and his office declared forfeited by reason of section 36 of article 4 of the Constitution of 1850.
This indictment is found under chapter 61 of the General Statutes relating to jailers and prescribing their duties. The jailer received the prisoner into his custody, discharged him when the time expired, and there is nothing showing that he violated any of his duties as jailer as prescribed by section 4 of article 1 of chapter 61. The
We do not mean to say that a willful refusal to receive a prisoner, or to discharge him after he is in custody, as the law requires, is not' an indictable offense, although the prisoner is confined under the first statute referred to; but what we do mean is, that the proof warrants no forfeiture of office for a violation of any of the duties imposed by chapter 61 of the General Statutes, and the lesser penalty was intended to apply where there might be.a slight departure from a line of - duty that did not amount to willful neglect or misfeasance or malfeasance in office.
The offense for which the accused was tried, if found .guilty, lost him his office as jailer, and the fact that the jailer required his prisoner to clean up the court, room, or carry water to his family on one or two occasions (particularly when it was a mere inadvertence on his part), instead of working him on the 'street all the while, is not such agrave offense as would subject the accused to a heavy fine and at the same time deprive him of the right to hold longer the office. Such was never contemplated
The judgment is reversed, and remanded, with directions, to set aside the judgment forfeiting appellant’s office, as well as the fine imposed, and to dismiss the indictment.