State v. Gardner

• Decision Date: 31 May 1828
• Citation: 2 Mo. 23
• Parties: THE STATE v. GARDNER.
• Court: Missouri Supreme Court

2 Mo. 23

THE STATE

v.GARDNER.

Supreme Court of Missouri.

May Term, 1828.

ERROR FROM ST. LOUIS CIRCUIT COURT.

MCGIRK, C. J.

This was an indictment of a justice of the peace for a supposed misdemeanor in office; the indictment was demurred to, and the demurrer sustained: to reverse this judgment, the State brings the cause to this court by writ of error.

The first section of the act of 4th January, 1825, Revised Code, 469, provides for the appointment of justices of the peace, and the act in part defines their duties--the 5th section of which provides “that the said justices of the peace shall continue in office during the term of four years from the date of their commissions, unless sooner removed therefrom on conviction for bribery, perjury, or other infamous crime, or on conviction for any willful misdemeanor in office, by indictment in the Circuit Court. The indictment charges that Gardner was a justice of the peace, and that as such justice of the peace, did, on a certain day, willfully issue his summons directed and delivered to the constable of St. Ferdinand township, commanding the said constable to summon one John Spencer to appear before him, the said Gardner, on a certain day, to answer to a pretended demand in favor of one black Locker, a negro man slave, which summons was served--the said Gardner at the time of issuing said summons, knowing that Locker was a slave and the property of him, the said Gardner, to the great perversion of public justice, and contrary to the form of the statute in such case made and provided, &c.

The point made in this case is, whether the indictment charges any misde meanor. The words of the law are: on conviction for any willful misdemeanor. The words of the indictment are: that the defendant willfully issued a summons, &c. And the circuit attorney insists that it being clearly a void summons, is a misdemeanor; and it having been alleged to be willful, the statute is satisfied and the indictment good. I am of a contrary opinion. In this case two things are required. First. That the indictment should show such facts as would amount to a misdemeanor independent of the word willful, and to make this out the indictment should charge the act to have been done knowingly and corruptly; and secondly, that the fact should be alleged to be willful. It may be that the Legislature intended to use this word to draw a distinction between intentional and corrupt violations of official duty, and those that are only instances of...