Commonwealth v. Fitzpatrick

264 S.W. 1105, 204 Ky. 484, 1924 Ky. LEXIS 514

• Court: Court of Appeals of Kentucky
• Decided: September 26, 1924
• Status: Published

Opinion

Opinion of the Court by

Judge Clarke —

Affirming.

The indictment herein accuses the members of the fiscal court of Letcher county of the alleged offense of unlawfully, fraudulently, and feloniously paying to Robert Blair, the county attorney, and John I). Fitzpatrick, the county judge, money in excess of their salaries. A demurrer was sustained to the indictment, and this appeal challenges the correctness of that ruling.

Assuming but not deciding that the indictment in the accusatory part charges an offense, it would be necessary that in the descriptive part of the indictment facts be alleged showing that the sums paid the officers were in excess of the amounts due them as salaries. The indictment wholly fails in this respect, as it simply alleges that the sums paid the two named officers on a certain date were paid to them unlawfully and wrongfully, which is clearly a conclusion of the pleader without the allegation of any facts to substantiate any such conclusion.

We are therefore clearly of the opinion that the lower court did not err in sustaining a demurrer to the indictment and dismissing the prosecution.

Judgment affirmed.