74 Colo. 417 | Colo. | 1924
delivered the opinion of the court.
Plaintiffs in error, hereinafter referred to as defendants, were indicted for malfeasance in office as county commissioners of Gunnison county. A verdict of guilty was returned as to each. Thereupon they were fined $200, and Sullivan and Knowles ordered removed from office. To review that judgment, defendants prosecute this writ and ask that it be made a supersedeas.
That portion of the statute under which the indictment herein was returned reads as follows: “Every * * * county commissioner * * * who shall wilfully and cor
The indictment recites that said defendants, “between the 1st day of June, 1922, and the 1st day of August in the year of our Lord one thousand nine hundred and twenty-two at and within the county aforesaid, then and there being, were and the said George Sullivan and Ted Knowles now are the duly elected, qualified and acting county commissioners of Gunnison County, Colo., and the said W. H. Whalen, George Sullivan and Ted Knowles, as such county commissioners, were then and there willfully, unlawfully and corruptly guilty of malfeasance in the discharge of their official duties in that they did then and there willfully, unlawfully, corruptly and illegally expend and cause to be spent of the funds of Gunnison County the sum of §379.10 for intoxicating liquors, dinners, banquets, music, sodas, cigars and miscellaneous expense, for entertainment purposes; * *
The indictment was returned April 23, 1923, and was thereafter supplemented by a bill of particulars. All defendants moved to quash, because no offense was charged. Defendant Whalen also moved to quash on the ground that the statute in question was not applicable to him. Both motions were overruled. The jury was impaneled and sworn May 21, 1923. At the close of the people’s evidence, defendants moved for an instructed verdict 'on the ground that there was no proof of willfulness and corruption. That motion was overruled. The verdict was returned May 25, 1923, and it was therein recommended that Sullivan and Knowles be removed from office. Motion for a new trial was filed and overruled and judgment entered on the verdict.
There appears to be no material disagreement as to the
There is no material dispute as to the commissioners’ authorization for refreshment and entertainment, their allowance of the bills therefor, and the payment of the same by the county, save as to the single question of intoxicating liquor. On that subject it is the contention of the people that such authorization, allowance and payment, included approximately $120.00 for whiskey. It is the contention of defendants that liquor was furnished by Whalen, Knowles and the county clerk; that so far as Knowles and
The principal points here urged are: (1) The indictment charges no violation of official duty. (2) The statute in question has no application to one not in office at the time of the filing of the indictment. (3) The court erroneously instructed the jury as to the meaning of the terms “willfully” and “corruptly.” (4) Defendants’ requested instruction No. 30 was erroneously refused. (5) The admitted allowance of claims was not shown to be in violation of the statute, the evidence was insufficient to support the verdict, and the motion for new trial should have been granted.
1. It is said that it is no part of the duties of county commissioners “to expend” county funds, and that the indictment fails to charge it was a part of their duty to “cause to be spent” said funds. The indictment charges defendants with corruptly causing the county money to be spent, and the bill of "particulars informs them that this charge is based on their allowance of certain claims. Those claims could only be allowed by the commissioners. Such allowance would “cause” payment by the treasurer. If the claims were corruptly allowed, the commissioners by that act corruptly caused the county money to be spent.
Counsel for defendants base their argument on this point upon the decision of this court in Schraeder v. People, 73 Colo. 400, 215 Pac. 869, wherein we held that an information charging violation of an official duty “not an absolute one” must recite the fact which makes the duty absolute. In that case a sheriff was charged with “extorsively” receiving money for omitting to serve a warrant
2. When this indictment was filed, the term of defendant Whalen had expired, and for that reason he insists that the statute is not applicable to him. The argument is based upon that portion thereof concerning removal from office. It is ingeniously conceived and skillfully presented, but is too far-fetched to hold us long,. The legislative intent merely to provide an additional penalty in aggravated cases and where applicable is, we think, clearly apparent. Had the statute specifically directed that the fine imposed should be a perpetual lien upon the defendant’s real estate, it might with equal force have been argued that the act was applicable only to freeholders.
3. Objection is made because the court did not specifically instruct the jury that defendants’ intention to obtain for themselves, or some third person, unlawful gain at the expense of the county was an essential element of the offense, The jury was instructed that the act charged must be done viciously or wickedly, with knowledge that it was wrong and unlawful, and done with a bad purpose or intent and without justifiable excuse. That the element of willfulness was thereby fully covered requires no argument, and the same appears to us true as to the element of corruption. Authorities are cited which seem to support defendants’ position but in those cases different facts required different instructions. If the act charged depended entirely for its corrupt character on the element of unlaw
4. Defendants’ requésted instruction No. 30, refused by the court, advised the jury that defendants could not be presumed to know all the law relating to their official duties, but that knowledge thereof, as such law related to the acts in question, must be proved. Assuming the correctness of this proposition, it was covered in numerous instructions given. If the court erred in this particular, that error was in favor of defendants, not against them.
5. While this indictment contains but a single count, the expenditures upon whose alleged authorization it rests are clearly divisible (not only as to their character but also as to the evidence supporting them and the instructions applicable to them) into two classes: (1) Intoxicating liquor; (2) meals, music, etc.
Assuming the correctness of the instructions as applied to the second class, defendants could only be convicted of malfeasance for causing the money of the county to be expended for these things, if they acted viciously or willfully knowing their acts to be wrongful, and performed with a bad purpose or intent, and without justifiable excuse. Not only is the record absolutely devoid of evidence of such facts, but all the evidence is positively to the contrary. Each of defendants was cognizant of a standing and hitherto unquestioned custom of making similar expenditures under circumstances believed by the commissioners to be beneficial to the county. No question of the legality of the expenditures in this second class was raised by any one and each of the defendants believed them to be legal and proper. The county attorney knew of the plan to make
The alleged expenditures for intoxicating liquor, as to which the evidence was positive and directly conflicting, rest upon an entirely different ground. The purchase of meals, music, etc., is ordinarily legal, but such purchase of intoxicating liquor is forbidden by the criminal law, and these commissioners were not only presumed personally, but officially as well, to know that law. If they knowingly authorized the expenditure of county funds for such a purchase, it would be as absurd to say that such act was not corruptly done, as to make the same argument, had they allowed claims for bribery or perjury. If it be answered that such expenditures would incidentally be for the gain of the persons bribed or suborned, and the definition of “corruptly” contended for by the defense be thus met, we reply that the expenditure for liquor was incidentally for the gain of the dealer therein, and defendants would be guilty under their own definition of the term. The authorities cited need not be examined. Suffice it to say that none have been called to our attention which would authorize an official charged with corruption involving the violation of a general criminal statute to plead in defense either his ignorance of the law’s existence or his laudable motive for its violation. Further analysis is superfluous.
It follows from the foregoing that unless these two classes of expenditures can be separated, so that this court is able to say that defendants were convicted of causing the county funds to be spent for the first, and not for the second, the judgment can not stand.
Examining the record before us as it relates to this subject, we find that the whole question of what expenditures were legal and what were illegal was left to the determination of the jury without any guidance from the trial court. Defendants’ requested instruction No. 31 was refused and an exception saved to that ruling. The tenth paragraph of the motion for a new trial and the tenth assignment of error are based thereon. Said instruction advised the
There was evidence to support a conviction of defendants for allowing claims against the county for intoxicating liquor. There was no evidence to support a conviction for allowing any other claims. All were, however, submitted to the jury. For that error the motion for a new trial should have been granted.
The judgment is accordingly reversed and the cause remanded.