Grebe v. State
| Decision Date | 04 December 1924 |
| Docket Number | 24118 |
| Citation | 201 N.W. 143,112 Neb. 715 |
| Parties | WILLIAM GREBE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county: ALEXANDER C. TROUP JUDGE. Affirmed.
AFFIRMED.
A. L Tidd, for plaintiff in error.
O. S Spillman, Attorney General, and Lloyd Dort, contra.
Heard before MORRISSEY, C. J., LETTON, DEAN, GOOD and THOMPSON, JJ.
Defendant was convicted in the district court for Cass county under an indictment in which he was charged with malfeasance in office for unlawfully assaulting one Hayward.
At the time charged in the indictment, defendant was a constable within Cass county and the prosecution is based upon the provisions of section 9722, Comp. St. 1922.
By instruction No. 3, the court told the jury: "The statute of the state of Nebraska, in so far as it pertains to the offense charged against the defendant herein, provides 'Any * * * constable * * * or any ministerial officer, who shall be guilty of any palpable omission of duty or who shall wilfully * * * be guilty of malfeasance or partiality in the discharge of his official duties, shall be fined' as provided by law." The first objection of defendant is that in this instruction the court omitted the words "or corruptly" which are found in the statute immediately following the word "wilfully." In instruction No. 5, the court defined the term "malfeasance," and concluded the instruction by saying: "An act of a public officer is considered as done 'wilfully' when the officer consciously acts contrary to a known duty or intentionally omits to do that which he knows it is his duty to do." Because the words of the statute, "or corruptly," are omitted from the instructions mentioned, defendant insists that these instructions are prejudicially erroneous. Counsel say that the words "or corruptly" as used in the statute add to the meaning of the word "wilfully," and that the language used means not merely that the act is done voluntarily, but that it is done with a bad motive. In support of this contention counsel quote the concluding sentence from paragraph 6 of the syllabus of State v. Donahue, 91 Neb. 311, 135 N.W. 1030, which reads: "It must be prompted by some evil intent, or legal malice, or at least be without sufficient grounds to believe that he is performing his duty." It is rare, indeed, that a single sentence when set apart and considered without relation to its context expresses the full meaning of its author. The sentence quoted is not an exception to the rule and should be considered in connection with the entire paragraph in which it is used. It may, too, be worthy of mention that the opinion in the case relied upon was adopted by a divided court, and the authorities cited by the judges who dissented raise a serious question as to the correctness of the majority opinion. However, a disposition of this case does not make necessary a review of the issues there discussed or determined. In the ...
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