State v. West
| Decision Date | 22 March 1886 |
| Citation | 21 Mo.App. 309 |
| Parties | STATE OF MISSOURI, Respondent, v. HARLEY WEST, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Cass Circuit Court, HON. NOAH M. GIVAN, Judge.
Reversed and remanded.
The case is stated in the opinion.
FOSTER P. WRIGHT and WOOLDRIDGE & DANIELS, for the appellant.
I. The indictment is bad. It does not state any criminal offence. It does not specify any official act, which it was the duty of the defendant to perform; nor that he had charge of any estate; nor how he became invested with the office of public administrator. Commonwealth v. Rapp, 9 Watts 114.
II. The duties of this office are ministerial, except, possibly, in administering an oath, and this is not alleged here. So the date of the charge should be alleged with certainty. State v. McCracken, 20 Mo. 412; State v Hamilton, 65 Mo. 669.
III. The court erred in admitting improper evidence for the state against the objections of defendant: as to his election; as to such officer; and as to the acts charged against him in the indictment.
IV. The court erred in the instructions given for the state. There was no evidence of the charge alleged, while in the performance of official duty, or when the law required it. It also erred in refusing defendant's instructions.
No brief on file for the respondent.
The defendant was indicted and convicted as public administrator of Cass county, under the following statute: " If any public officer, whether state, county, or city, town or township officer, shall be intoxicated while in the performance of any official act or duty, or shall become so intoxicated as to be incapacitated to perform any official act or duty, at the time and in the manner required of him in the discharge of the duties of his office, he shall be declared guilty of a misdemeanor in office," etc. In addition to the usual penalty in like offences, a conviction works a forfeiture of office.
Various objections are made to the indictment on this appeal.
I. It is objected that it does not specify any official act which it was the duty of defendant to perform while so intoxicated nor that he had charge of any estate at the time, nor is it alleged how he became invested with the office.
It is to be borne in mind that the section of the statute is in the disjunctive, and contains two offences. The first is for being intoxicated while in the performance of any official act or duty; and the second is for becoming so intoxicated as to be incapacitated to perform any official act or duty, at the time and in the manner required by his office. It was competent to indict him, according to the facts, for either or both of these offences. State v. Batson, 31 Mo 343. The indictment is manifestly based on the second clause. It follows substantially the language of the statute, and that is sufficient in describing such statutory offences. State v. Fulton, 19 Mo. 680; State v. Batson, supra; State v. Stubblefield, 32 Mo. 563; State v. Roehn, 61 Mo. 590; 1 Bish. Crim. Proc., sects. 611, 612.
II. It is next insisted that the indictment is bad, because it refers to two dates, the first day of June, 1883, the time when the offence begun, and the first day of January, 1885, the time when defendant's term of office terminated, after which follows the term " then and there." Conceding to appellant that the indictment is technically defective in this respect, his objection comes too late. It was not raised in the court below. After verdict such defects are cured by the statute of jeofails. Rev. Stat., sect. 1821.
III. It is also assigned for error that the trial court should have required a copy of the certificate of defendant's election as the best evidence that he was such public administrator. The parol evidence, that he held the office, etc., was admitted at the trial without objection on the part of defendant. The objection cannot be made for the first time on appeal. Had it been made timely the state doubtless would have obviated the objection by introducing the better proof. Walker v. Owens, 79 Mo. 563-568.
IV. Certain questions asked of witnesses and answers...
To continue reading
Request your trial