Com. v. Wood

• Decision Date: 18 November 1903
• Citation: 76 S.W. 842,116 Ky. 748
• Parties: COMMONWEALTH v. WOOD.
• Court: Kentucky Court of Appeals

76 S.W. 842

116 Ky. 748

COMMONWEALTH v. WOOD.

Court of Appeals of Kentucky.

November 18, 1903

Appeal from Circuit Court, Todd County.

"To be officially reported."

W. R Wood was indicted for malfeasance in office, and from a judgment sustaining a demurrer to the indictment the commonwealth appeals. Affirmed.

Clifton J. Pratt, M. R. Todd, and Jas. R. Mallory, for appellant.

Petrie & Standard, for the Commonwealth.

O'REAR J.

Appellee was indicted by the grand jury of Todd county for malfeasance in office. It is charged that he, as county court clerk of Todd county, "willfully and unlawfully" issued a liquor license to one Greenfield to sell liquor by retail in the town of Trenton, when previously that town had at an election regularly held, voted in favor of the local option law, and that the result of the vote, duly certified was of record in his office. The only question presented that we have felt called upon to decide or consider is the sufficiency of the charge as made in the indictment. It is not averred that appellee's action was from a corrupt motive or fraudulent, or that he knew at the time that it was unlawful for him to issue the license. While malfeasance in office is defined generally to be the wrongful or unjust doing of some official act, which the doer has no right to perform, or which he has stipulated by contract not to do, it is essential that an evil intent or motive must accompany the act, or that it must have been done with such gross negligence as to be equivalent to fraud. As said in Bishop's New Criminal Law,§ 972: "The court requires evidence of something more than a mere mistake of duty. There must be corruption. This also is necessary to sustain an indictment." And in the same author's work on New Criminal Procedure, § 834, it is said: "Corruption, in some form of words, must generally be averred; it is believed, always at common law." An honest mistake of an officer concerning the discharge of an official duty although it may be the result of ignorance, ought not to, and cannot, unless the express terms of the statute impel to such construction, make him a criminal. If the act is done with a corrupt purpose, or from a corrupt motive, or with a knowledge by the officer at the time that his official act is a violation of the law, or if the act is done so negligently or carelessly or recklessly as to show an utter want of care or of concern, and such as would be...