Commonwealth v. Wood

Opinion of the court by

JUDGE O’REAR

Affirming.

Appellee' was indicted by tbe grand jury of Todd county for malfeasance in office. It is charged that he, as county court clerk of Todd county, “willfully and unlawfully” issued a liquor license to one Greenfield to sell liquor by retail in the town of Trenton, when previously tjhat town had, at an election regularly held, voted in favor of the local option law, and that the result of the vote, duly certified, was of record in his office. The only question presented that we have felt called upon to decide or consider is the sufficiency of the charge as made in the indictment. It is not averred that appellee’s action was from a corrupt motive or fraudulent, or that he knew at the time that it was unlawful for him to issue the license. While malfeasance in office is defined generally to be the wrongful or unjust doing of some official act, which the doer has mo right tio perform, or which he has stipulated by contract not to do, it is essential that an evil intent or motive must accompany the • act, or that it must have been done with such gross negligence as to be equivalent to fraud. As said in Bishop’s New Criminal LaW, sectioni 972: “The court requires evidence of something more than a mere mistake of duty. There must be corruption. This also is n/ecessary to sustain an indictment.” And in the same author’s work on New Criminal Procedure, section 834, it is said: “Corruption, in some form of words, must generally be averred; it is believed, always at common law.” An honest mistake of an officer concerning the discharge of an official duty, although it may be the result of ignorance, ought not to, and can not, unless the express terms of the statute impel to such construction, make liim a criminal. If the act is done with a corrupt purpose, or from a corrupt motive, or with a knowledge by the officer at the time that his official act is a violation of the law, or if the act is done so- negligently or carelessly or recklessly as to show an utter want of care or of concern, and such as would be1 tantamount to a fraud, and therefore could be ,said to be fraudulently done, his act will be a malfeasance, but not otherwise. Commonwealth v. Arnold, 3 Litt., 309; Commonwealth v. Barney, 24 R., 2352, 74 S. W., 181; Lynch v. Commonwealth, 24 R., 2180, 73 S. W., 745; Commonwealth v. McPeek, 14 R., 215, 20 S. W., 220; Commonwealth v. Rodes, 6 B. Mon., 171; Commonwealth v. Chinn, 110 Ky., 527, 22 R., 1921, 62 S. W., 685.

Wherefore the judgment' of the circuit court sustaining the demurrer to the indictment is affirmed.