State v. Pinger
| Decision Date | 31 August 1874 |
| Citation | 57 Mo. 243 |
| Parties | STATE OF MISSOURI, Appellant, v. JOHN PINGER, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
Jas. P. Thomas. for Appellant.
I. Corruption is neither an element in, nor a constituent part of the offense created by the act of March 20th, 1872. (Adj. Sess. Acts, 1872, p. 59.) Therefore it is not necessary to allege in the indictment that it was done corruptly. (Bish. Stat. Cr., § 371.)
Where a statute forbids the doing of an act under a penalty, the person doing such act is indictable without the addition of corrupt motives. (Whart. Pr. Ind. & Pl., vol. 1, ch. 2, p. 20.)
Where the appropriation voted for is for a purpose not directed and warranted by law, and the justice so voting knows that fact at the time he votes for the same, and the purpose is in fact effected, the crime of felonious embezzlement is complete. (Adj. Sess. Acts, 1872, p. 59.) The indictment strictly charges each of these three ingredients, and is therefore good.
The offense charged is not a misdemeanor in office, but a felony created by the statute. The law names one act only, the doing of which knowingly, by any of the persons therein designated, constitutes a felony, and requires no additional words to describe, explain or charge the offense so made a felony. Hence the cases of the State vs. Gardener, (2 Mo., 23), and State vs. Hein, (50 Mo. 62), are not in point.
If the vote had been corruptly as well as knowingly given, the offense would have been indictable under the general law. (Wagn. Stat., 487, § 16.) Hence the legislature must have intended that if a justice of the County Court voted for an appropriation of the county's money to a purpose which he knew at the time was not directed or warranted by law, he should be deemed guilty of feloniously embezzling the same, when the purpose is in fact effected, although he may have derived no benefit or advantage whatever from such appropriation, and may have expected none at the time he cast the vote. Otherwise the act of March 20th, 1872, would create no new offense, and would therefore be superfluous.
Where an indictment for an offense purely statutory, charges the offense in the language of the statute, it is sufficient. (State vs. Stubblefield, 32 Mo., 63; State vs. Comfort, 5 Mo., 357; on this point, see particularly Commonwealth vs. Welsh, 7 Gray, 327, and authorities cited.)
The bills allowed are set out in the indictment, so that the court can see that they are private matters of account between individuals, with which Buchanan county had not the remotest connection, and in which said county had not the slightest interest. It was to put an effectual stop to such reckless squandering of the public money, that the legislature passed the law in question.
Hill & Carter and Hunter & Mossman, for Respondent.
I. This indictment is defective in that it omits to charge, that the respondent, in doing the alleged acts, acted willfully and corruptly. These words must be used even in cases of misdemeanor against public officers generally, and especially so against judges of courts.
II. This statute created no new offense, but changed what was a misdemeanor at common law into a felony. At common law an indictment against a judicial officer always required that the act constituting the offense, should be charged to have been done “willfully, knowingly and corruptly, with intent,” etc.
And the rule is the same where the statute merely declares what shall be the punishment of an offense known to the common law. (State vs. Steadman, 7 Pet., 495; Bell vs. State, 5 Eng. Act, 536; U. S. vs. Desher, 1 Morris, 412; Camp vs. State, 3 Kelly, 417; State vs. Absence, 4 Potter, 397; 2 Am. Cr. Law, par. 2521; Eyman v. People, 1 Gil. 8.)
An indictment to be good under the statute, must contain the averments which the common law required in cases of misdemeanor in office. (1 Paine C. C., 16; Price vs. Thornton, 10 Mo., 135; Com. vs. Stack, 19 Pick., 304; Regnie vs. Page, 34 Eng. Com. Law, 644; Regnie vs. Allday, 34 Eng. Com. Law, 652; Bish. Crim. Prac., §§ 521-524, and 623-630.)
An innocent mistake in no case renders a party liable to indictment. (Bish. Stat. Cr., §§ 805, 806; Bish. Crim. Law, vol. 1, §§ 291-300; 6 Blackf., 248; State vs. Newkirk, 49 Mo., 84.)
And the indictment must charge the intent and all the circumstances which come into the definition of the offense in the statute, so as to bring the defendant precisely within the act. (State vs. Ross, 25 Mo., 426; State vs. Evans, 49 Mo., 542; State vs. Colburn, 44 Mo., 344.)
III. The act of March 20th, 1872, so far as it affects judges of courts of record acting judicially, is unconstitutional and void. The officer included here is a judge of a court of record, and he is indicted for doing a judicial act over which he had jurisdiction, and he can only be made responsible when he acts “willfully, corruptly and maliciously,” or be subjected to a civil suit. (See Reed vs. Conway, 20 Mo., 523; Pike vs. McGown, 44 Mo., 491, and authorities referred to by the court.) But when he acts judicially upon the subject matter, over which he has jurisdiction, then impeachment and removal from office is the only remedy, and he cannot be reached by indictment or civil suit. The statute of March 27th, 1874, is explanatory of the act of 1872, and shows clearly that it was never intended to apply to the case at bar. (Sess. Acts 1874, p. 45.)
This was an indictment under the act approved March 20, 1872, (Adj. Sess.Acts, 1872, p. 59) for an abuse of a public trust. The indictment charges that the defendant was a justice of the County Court of Buchanan county, and that as one of said justices, while the court was in session, he voted for and made an appropriation out of the public funds to pay a certain claim, and appropriated and paid the same out of the public money, well knowing that the appropriation and payment were illegal, and for a purpose not warranted and directed by law; and that he knowingly and feloniously did vote for said illegal and unlawful appropriation, whereby, etc.
The court sustained a demurrer to this indictment, and the State appealed.
The act under which this indictment was found, provides among other things, that if any member of a County Court shall knowingly vote for the appropriation, disposition or disbursement of any money or property belonging to the county, for any purpose not directed and warranted by law, such person so voting for such illegal appropriation, disbursement or disposition of any such money or property shall be deemed and taken, if such illegal appropriation, etc., be in fact effected, to have feloniously embezzled and converted to his own use, etc.
The only question is, whether the indictment contains the necessary averments to charge a substantial offense. The general principle is, that the indictment should charge the intent and whatever circumstances are sufficient to bring the offense within the meaning and definition of the statute. The statute that we are now considering creates no new offense, but it magnifies into a felony what was previously a misdemeanor.
In the case of State vs. Gardener, (2 Mo., 23) the question here in issue was considered and decided. There the indictment charged that Gardener was a justice of the peace, and that as such justice, he did, on a certain day willfully issue his...
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