93 Ark. 81 | Ark. | 1909
(after stating the facts.) Comparing the language of the indictment with the act of May 6, 1905, § 6 (pp. 653-7), it appears that appellant was indicted for failing to require the sheriff of Benton County to make settlement under that act. This act does not make it the duty of the county court to require such settlement. Therefore authority for indicting appellant, if it exists, must be found under section 1874 and sections 7155, 7156, 7163, Kirby’s Digest. Conceding, without deciding, that section 6 of the act of May 6, 1905, applies to sheriffs, and conceding, without deciding, that the judge of the county court is liable under section 1874 if he fails to require the sheriff to make the settlement required by the act of May 6, 1905, § 6, the indictment is nevertheless fatally defective in that it failed to allege affirm a - tively that the sheriff did not make the settlement in the manner prescribed by the act supra. If the sheriff settled without being required to do so, the county judge would not be liable under section 1874 above for failing to make the requirement, for the obvious reason that requirement to make settlement under such circumstances would be unnecessary. Suppose the sheriff made the settlement, would the county judge be guilty then because he neglected or refused to require him to make it? Certainly not. Therefore an allegation that the sheriff failed to make the settlement is absolutely indispensable. There is no such allegation. A criminal offense cannot be charged by implication. Nothing must be left to intendment. Elsey v. State, 47 Ark. 572; State v. Ellis, 43 Ark. 693; State v. Davis, 80 Ark. 310; St. Louis & San Francisco Rd. Co. v. State, 83 Ark. 249.
The judgment is therefore reversed, and the cause is remanded with directions to sustain the demurrer.