57 Mo. 243 | Mo. | 1874
delivered the opinion of the court.
This was an indictment under the act approved March 20, 1872,(Adj. Sess.Acts, 1872, p. 59) for an abuse of a public trust. The indictment charges that the defendant was a justice of the County Court of Buchanan county, and that as one of said justices, while the court was in session, he voted for and made an appropriation out of the public funds to pay a certain claim, aud appropriated and paid the same out of the public money, well knowing that the appropriation and payment were illegal, and for a purpose not warranted and directed by law; and that he knowingly and feloniously did vote for said illegal and unlawful appropriation, whereby, etc.
The court sustained a demurrer to this indictment, and the State appealed.
The act under which this indictment was found, provides among other things, that if any member of a County Court shall knowingly vote for the appropriation, disposition or disbursement of any money or property belonging to the county, for any purpose not directed and warranted by law, snch person so voting for such illegal appropriation, disbursement or disposition of any such money or property shall be deemed and taken, if such illegal appropriation, etc., be in fact effected, to have feloniously embezzled and converted to his own use, etc.
The only question is, whether the indictment contains the necessary averments to charge a substantial offense. The general principle is, that the indictment should charge the intent and whatever circumstances are sufficient to bring the
In the case of State vs. Gardener, (2 Mo., 23) the question here in issue was considered and decided. There the indictment charged that Gardener was a justice of the peace, and that as such justice, he did, on a certain day willfully issue his sumihons, etc., knowing that, etc. McGirk, Oh. J.,in delivering the opinion of the court, said : “The point made in this caséis, whether the indictment charges any misdemeanor. The words of the law are, ‘on conviction for any willful misdemeanor.’ The words of the indictment are, that ‘ the defendant willfully issued a summons,’ etc. And the circuit attorney insists that it being clearly avoid summons is a misdemeanor; and it having been alleged to be willful, the statute is satisfied and the indictment is good.”
I am of a contrary opinion. In this case two things are required: first, that the indictment should show such facts as would amount to a misdemeanor, independent of the word, "willful”; and to make this out, the indictment should charge the act to have been done knowingly and corruptly ; and, secondly, that the act should be alleged to be willful.
So in the case of the State vs. Hein, (50 Mo., 362) where the section of the statute under which the proceedings were had, declared that every person exercising or holding any office or public trust, who should be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in. his official capacity, or under color of his office, should, 'on conviction, be punished, etc. The indictment was against the justices of the Cooper County Court; and charged that the parties “ being then and there justices of the County Court; *•**•**• umjer color of their offices as justices, unlawfully, willfully, and by a gross abuse of authority in their official qapaeity, 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.
Now the act that we are construing says, that if the officer shall knowingly vote for the appropriation, for any purpose not directly warranted by law, he shall be deemed, etc.
The indictment essentially follows this language, but that is not sufficient. Of course the officer must knowingly do the act or cast the vote; if it was not so done, it would not constitute a crime under any circumstances: But he might do it intelligently and knowingly ; and it might be a matter of doubt whether the appropriation was justified or warranted by law or not. If upon a construction of the law it was determined that the appropriation was not directed or warranted, surely the law would not criminally punish the officer for a mistaken judgment. It would be necessary therefore, to make the further averment that he was actuated by some dishonest or corrupt motive. Hence the best authorities are in harmony with the law, as previously adjudged by this court.
In speaking on this subject, Wharton says, “it is generally necessary to constitute the offense, that the motive should be corrupt; and that in an indictment against an officer of justice for misbehavior in office, it is necessary that an act imputed as misbehavior, be distinctly and substantially charged to have been done with corrupt, partial, malicious or improper motives, and above all with knowledge that' it was wrong, though no technical words in framing the charge will be required.3’ (3 Whart. Grim. Law, §§ 2520-21.) This doctrine is supported with a great array of authorities. •
I think the judgment should be affirmed;