State v. Hein

50 Mo. 362 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

This was an indictment against the justices of the Cooper County Court, and charges “ that said parties, being then and there justices of the County Court of said county, duly elected, etc., did then and there, under color of their offices as such justices, unlawfully, willfully and by a gross abuse of authority in their official capacity, and under color of their said offices as justices of the said Cooper County Court, draw and order to be drawn on the treasurer of said county a warrant,” etc. The indictment was demurred to as insufficient, and the demurrer was sustained and the State appealed to this court.

The section of law under which this indictment was framed declares that “ every, person exercising or holding any office or public trust who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity, or under color of his office, shall, on conviction, be punished,” etc. (Wagn. Stat. 487, § 16.)

The act of which the officers must be guilty must be a willful act, but the indictment to be good should contain other averments. It should show such acts as would- amount to the imputed crime independent of the word “willful” ; and to make this out, the indictment should charg§ the act to have been done knowingly and corruptly, and the act .should be alleged to be willful. (The State v. Gardner, 2 Mo. 23.)

I think the demurrer was properly sustained, and the judgment of the Circuit Court should be affirmed.

Judge Bliss "concurs. Judge Adams not sitting.