Short v. Com.

• Citation: 219 S.W. 165,187 Ky. 279
• Parties: SHORT v. COMMONWEALTH.
• Decision Date: 02 March 1920
• Court: Kentucky Court of Appeals

219 S.W. 165

187 Ky. 279

SHORT v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 2, 1920

Appeal from Circuit Court, Harlan County.

Frank Short was convicted of malfeasance in office as a justice of the peace, and he appeals. Affirmed.

Hall &amp Jones, of Harlan, for appellant.

Chas I. Dawson, Atty. Gen., for the Commonwealth.

SAMPSON J.

Frank Short, a justice of the peace in Harlan county, was indicted in the Harlan circuit court for malfeasance in office alleged to have been committed by withholding money paid on certain fines collected by him in his official capacity, and not reported to the Harlan circuit court as required by section 4252, Kentucky Statutes. Short was found guilty on a trial before a jury, and his punishment fixed at a fine of $100 and his office adjudged vacant in pursuance to section 3748 Kentucky Statutes. From that judgment he appeals to this court.

His chief complaint is that the indictment is bad for duplicity, and he also insists that the instructions are erroneous, because they follow the indictment. The indictment reads as follows:

"Harlan Circuit Court. The Commonwealth of Kentucky, Plaintiff, v. Frank Short, Defendant. Indictment. The grand jury of Harlan county, in the name and by the authority of the commonwealth of Kentucky, accuse Frank Short of the offense of malfeasance in office committed in manner and form as follows, viz.: The said Frank Short in the state and county aforesaid, and on the 11th day of January, 1919, and before the finding of this indictment, did unlawfully and willfully and knowingly, while acting as justice of the peace, after having been duly elected and qualified as such in magisterial district No. 2, Harlan, try and fine Frank Clark in two cases, $2.50 each for violation of the penal laws of the state, and also try and fine Will Schuler for violation of the game and fish laws of the state and fixed the fine at $50, all of which fines were collected by him in his official capacity, and willfully and corruptly failed and refused to report or account for said fines, or either of them, to the Harlan circuit court, or any other court or office, but appropriating same to his own use. Against the peace and dignity of the commonwealth of Kentucky. J. G. Forester, Commonwealth's Attorney, 26th Judicial Dist. of Kentucky. Witness for the Commonwealth: W. H. Shoop."

It is insisted by appellant, Short, that the indictment charges him with the commission of three separate offenses, and in that respect violates section 126 of the Criminal Code, which provides that an indictment must charge but one offense. It is true that the indictment avers that Short, while acting as justice of the peace, tried Frank Clark in two separate cases on different days, and fined him $2.50 in each case, and collected the fines, and that he also tried Will Schuler in another case, and fined him $50, which he collected; but the indictment accuses Short of malfeasance in office, committed by willfully and corruptly failing, while a justice of the peace, to report or account for money collected on fines to the Harlan circuit court. Malfeasance in office is the offense charged in the indictment, and if this offense was committed by Short, it was by willfully and corruptly failing and refusing to report the money collected on fines as provided by section 4252, Kentucky Statutes, which is but a single offense. If Short had tried 20 different cases on 20 different days, and had collected the fines, and on the first day of the circuit court had failed to report the fines, he would have become guilty of malfeasance in office, not by reason of having inflicted and collected the fines, but by the act of failing and refusing to report the money collected on the fines to the circuit court. Before the Harlan circuit court met the three fines mentioned in the indictment--two against Frank Clark and one against Will Schuler--were imposed, and the money collected, according to the allegations of the indictment, and all this was lawful; but when Short willfully and corruptly failed and refused to report this money on the first day of the circuit court, as required by statute, he became guilty of the charge, malfeasance in office, named in the indictment.

In the case of Commonwealth v. Crowell, 60 S.W. 179, 22 Ky Law. Rep. 1182, the indictment was attacked for...