MR. JUSTICE GALEN
delivered the opinion of the court.'
On November 14, 1925, an accusation was made in writing, and filed in the district court of Musselshell county by the county attorney against T. G. Beazley, the sheriff, seeking to bring about the summary removal of the latter for alleged nonfeasance in office. Of several charges of wilful neglect of duty, the defendant was finally brought to trial before the court upon three of the specifications contained in the accusation, this court having theretofore held them sufficient to charge nonfeasance under the provisions of section 11702 of the Revised Codes of 1921.
(State ex rel. Beazley
v.
District Court,
75 Mont. 116, 241 Pac. 1075.) At the conclusion of the plaintiff’s case, the defendant moved the court to dismiss the proceedings because of (1) failure of proof; (2) a variance between the proof and the charges; and (3) lack of jurisdiction on the part of the court. The motion was denied, and at the conclusion of all of the testimony was renewed, and again denied. The court found that the evidence offered in support of the allegations upon which hearing was had established the truth thereof, and consequently, as a matter of law, adjudged the defendant guilty of having wilfully neglected to perform his official duties, and ordered judgment to be entered depriving him of his office, and assessing him with the plaintiff’s
costs. Judgment was regularly entered accordingly, and the appeal is from the judgment.
Several errors are assigned by the defendant as reason for reversal of the judgment, but, in our opinion, there is but one question necessary to be considered in disposition of the appeal: Upon the evidence, was the court clothed with jurisdiction to enter the judgment?
The charges upon which the defendant was tried were to the effect that crimes of bribery were, on stated dates, committed in the presence of the sheriff, it being alleged that such offenses were perpetrated by persons named by directly offering and giving to the defendant money or other things of value with intent to influence him, as such sheriff, in the performance of his official and public duties, and that the defendant failed and neglected to arrest and institute proceedings against the persons named for the commission of the crime of bribery in his presence. In substance, the evidence is to the effect that the defendant was indebted in the sum of $500 for money borrowed, to one Nick Yranish, represented by a promissory note, dated June 8, 1924. Payments are shown to have been indorsed upon the note as follows: “July 14, 1924, $200, and April 2, 1925, $25.” Yranish testified that, in response to a letter he had written to Beazley demanding payment of the indebtedness, the latter called at his house at about midnight on April 2, 1925, and demanded money from Yranish for “protection” in the illicit sale of liquor, stating that he (Beazley) did not intend to pay his note to Yranish. Yranish protested, saying that the amount demanded was too much to pay for “protection.” Beazley insisted that the amount was not exorbitant, as Yranish was making lots of money. Yranish then offered to allow Beazley a credit of $100 on the note, but the latter said it was not enough, so they finally compromised by indorsing a payment of $200 on the note, Beazley agreeing to pay the balance of $300 at the rate of $25 per month. Beazley then paid $25 on the note, and the indorsement of payments shown on the note were then and there made. Beazley stated to Yranish that the allowance so made
was for “protection,” and that he could “go ahead and do business.” The indorsements of payments on the note as shown were made by Bleazley on the second day of April, 1925, and Vranish signed them. No further payments were made or indorsed on the note.
Jack Hinand, who had conducted a lodging-house in Roundup called the “Central Rooming House,” stated that on the 1st of February, 1925, the defendant asked him for money “for protection.” He testified: “He came to our place, said he wanted money, said if I don’t give him money he was going to close the place. I offered him $20 for the purpose of letting me do what I was- doing. * * * I gave sheriff $20. He told me, ‘I will get along fine.’ * * * He came to see me last November (1925) about the 2d. He came in and asked me for $100. * * * I offered him $25 because he say if I don’t give him money he is going to close the place again. * * * I gave him $30 at that time for protection.” On cross-examination he testified respecting these transactions: “He demanded $20 in my room No. 20 in the Central Hotel in Roundup. He said the $20 was to let me alone; to let me run the place as I pleased. That is what he said to me at the time. I refused three times to pay him the $20. He got hard-boiled, and, after that, I gave him the $20.” And as to subsequent demands made by the defendant upon the witness, he stated on further cross-examination that “on November 2, 1925, Mr. Beazley demanded of me $100 for protection, or he was going to close the place. He told me he was going to close the place if I don’t give him $100. * * * After I told him that I only had $25, he wanted $100. He say, ‘You can’t buy a man like me for $25.’ I finally gave him $30.” This comprises a fair statement of all of the evidence bearing upon the charges, and that which furnished basis for the court’s findings and judgment.
By section 11688 of the Revised Codes of 1921, it is provided: “An accusation in writing against any district, county, township, or municipal officer, for wilful or corrupt misconduct or malfeasance in office, may be presented by the grand jury of
the county for which the officer accused is elected or appointed.” And section 11702, so far as pertinent, provides that “When an accusation in writing, verified by the oath of any person, is presented to the district court, alleging that any officer * * * has been guilty of knowingly, wilfully, and corruptly charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has wilfully refused or neglected to perform the official duties pertaining to his office, the court # # * must proceed to hearing, in a summary manner, or trial, upon the accusation and evidence offered in support of the same, and the answer * * * offered by the party accused. * * * If, upon such hearing or trial, the charge is sustained, the court must enter a judgment that the party accused be deprived of his office, and for such costs as are allowed in civil cases. *
* *
”
The distinction between offenses cognizable under these two sections of the statute has been clearly pointed out by this court in
State ex rel. Rowe
v.
District Court,
44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103,
State ex rel. Hessler
v.
District Court,
64 Mont. 296, 209 Pac. 1052, and adverted to in
State ex rel. Beazley
v.
District Court,
75 Mont. 116, 241 Pac. 1075. Where the removal of a county officer is sought for wilful or corrupt misconduct or malfeasance in office, that is, for acts of commission, the district court is clothed with jurisdiction in such cases, only when the accusation has been presented by a grand jury.
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MR. JUSTICE GALEN
delivered the opinion of the court.'
On November 14, 1925, an accusation was made in writing, and filed in the district court of Musselshell county by the county attorney against T. G. Beazley, the sheriff, seeking to bring about the summary removal of the latter for alleged nonfeasance in office. Of several charges of wilful neglect of duty, the defendant was finally brought to trial before the court upon three of the specifications contained in the accusation, this court having theretofore held them sufficient to charge nonfeasance under the provisions of section 11702 of the Revised Codes of 1921.
(State ex rel. Beazley
v.
District Court,
75 Mont. 116, 241 Pac. 1075.) At the conclusion of the plaintiff’s case, the defendant moved the court to dismiss the proceedings because of (1) failure of proof; (2) a variance between the proof and the charges; and (3) lack of jurisdiction on the part of the court. The motion was denied, and at the conclusion of all of the testimony was renewed, and again denied. The court found that the evidence offered in support of the allegations upon which hearing was had established the truth thereof, and consequently, as a matter of law, adjudged the defendant guilty of having wilfully neglected to perform his official duties, and ordered judgment to be entered depriving him of his office, and assessing him with the plaintiff’s
costs. Judgment was regularly entered accordingly, and the appeal is from the judgment.
Several errors are assigned by the defendant as reason for reversal of the judgment, but, in our opinion, there is but one question necessary to be considered in disposition of the appeal: Upon the evidence, was the court clothed with jurisdiction to enter the judgment?
The charges upon which the defendant was tried were to the effect that crimes of bribery were, on stated dates, committed in the presence of the sheriff, it being alleged that such offenses were perpetrated by persons named by directly offering and giving to the defendant money or other things of value with intent to influence him, as such sheriff, in the performance of his official and public duties, and that the defendant failed and neglected to arrest and institute proceedings against the persons named for the commission of the crime of bribery in his presence. In substance, the evidence is to the effect that the defendant was indebted in the sum of $500 for money borrowed, to one Nick Yranish, represented by a promissory note, dated June 8, 1924. Payments are shown to have been indorsed upon the note as follows: “July 14, 1924, $200, and April 2, 1925, $25.” Yranish testified that, in response to a letter he had written to Beazley demanding payment of the indebtedness, the latter called at his house at about midnight on April 2, 1925, and demanded money from Yranish for “protection” in the illicit sale of liquor, stating that he (Beazley) did not intend to pay his note to Yranish. Yranish protested, saying that the amount demanded was too much to pay for “protection.” Beazley insisted that the amount was not exorbitant, as Yranish was making lots of money. Yranish then offered to allow Beazley a credit of $100 on the note, but the latter said it was not enough, so they finally compromised by indorsing a payment of $200 on the note, Beazley agreeing to pay the balance of $300 at the rate of $25 per month. Beazley then paid $25 on the note, and the indorsement of payments shown on the note were then and there made. Beazley stated to Yranish that the allowance so made
was for “protection,” and that he could “go ahead and do business.” The indorsements of payments on the note as shown were made by Bleazley on the second day of April, 1925, and Vranish signed them. No further payments were made or indorsed on the note.
Jack Hinand, who had conducted a lodging-house in Roundup called the “Central Rooming House,” stated that on the 1st of February, 1925, the defendant asked him for money “for protection.” He testified: “He came to our place, said he wanted money, said if I don’t give him money he was going to close the place. I offered him $20 for the purpose of letting me do what I was- doing. * * * I gave sheriff $20. He told me, ‘I will get along fine.’ * * * He came to see me last November (1925) about the 2d. He came in and asked me for $100. * * * I offered him $25 because he say if I don’t give him money he is going to close the place again. * * * I gave him $30 at that time for protection.” On cross-examination he testified respecting these transactions: “He demanded $20 in my room No. 20 in the Central Hotel in Roundup. He said the $20 was to let me alone; to let me run the place as I pleased. That is what he said to me at the time. I refused three times to pay him the $20. He got hard-boiled, and, after that, I gave him the $20.” And as to subsequent demands made by the defendant upon the witness, he stated on further cross-examination that “on November 2, 1925, Mr. Beazley demanded of me $100 for protection, or he was going to close the place. He told me he was going to close the place if I don’t give him $100. * * * After I told him that I only had $25, he wanted $100. He say, ‘You can’t buy a man like me for $25.’ I finally gave him $30.” This comprises a fair statement of all of the evidence bearing upon the charges, and that which furnished basis for the court’s findings and judgment.
By section 11688 of the Revised Codes of 1921, it is provided: “An accusation in writing against any district, county, township, or municipal officer, for wilful or corrupt misconduct or malfeasance in office, may be presented by the grand jury of
the county for which the officer accused is elected or appointed.” And section 11702, so far as pertinent, provides that “When an accusation in writing, verified by the oath of any person, is presented to the district court, alleging that any officer * * * has been guilty of knowingly, wilfully, and corruptly charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has wilfully refused or neglected to perform the official duties pertaining to his office, the court # # * must proceed to hearing, in a summary manner, or trial, upon the accusation and evidence offered in support of the same, and the answer * * * offered by the party accused. * * * If, upon such hearing or trial, the charge is sustained, the court must enter a judgment that the party accused be deprived of his office, and for such costs as are allowed in civil cases. *
* *
”
The distinction between offenses cognizable under these two sections of the statute has been clearly pointed out by this court in
State ex rel. Rowe
v.
District Court,
44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103,
State ex rel. Hessler
v.
District Court,
64 Mont. 296, 209 Pac. 1052, and adverted to in
State ex rel. Beazley
v.
District Court,
75 Mont. 116, 241 Pac. 1075. Where the removal of a county officer is sought for wilful or corrupt misconduct or malfeasance in office, that is, for acts of commission, the district court is clothed with jurisdiction in such cases, only when the accusation has been presented by a grand jury. Where, however, the accusation is for wilful refusal or neglect to perform official duties, constituting nonfeasance in office, the court is vested with jurisdiction upon the complaint of a citizen ■ to summarily try the accused without the aid of a jury.
(State ex rel. Hessler
v.
District Court, supra.)
In the case last' cited this court gave a clear and correct interpretation of the distinction between the offenses and procedure prescribed and intended by the legislature under these sections as follows: “It will be observed at once that the legislature has thus classified the acts of omission or commission which furnish grounds for removal, and has made the character of acts
charged against the officer the factor which determines whether the one method of procedure or the other must be pursued. If the acts charged constitute wilful or corrupt misconduct or malfeasance in office, as those terms were understood by the lawmakers in enacting the statute, then the jurisdiction of the court can be invoked only by an accusation presented by a grand jury of the county (see. 11688), and the accused officer is entitled to a trial by jury conducted in the same manner as the trial of an indictment for a misdemeanor (see. 11697). If, however, the officer is charged with nonaction only, that is, with wilful refusal or neglect to perform official duties, or with charging and collecting illegal fees, the jurisdiction of the court may be invoked by filing an accusation presented and verified by any person. (Sec. 11702.) In such case the hearing is had in a summary manner, and the accused is not entitled to a jury trial.
(State ex rel. Payne
v.
District Court,
53 Mont. 350, 165 Pac. 294.) These statutes make clear the intention of the legislature to distinguish between misfeasance and malfeasance on the one hand and nonfeasance on the other, and to secure to an officer accused of the more serious offense certain safeguards which are denied to one accused of the lesser offense. In other words, before an officer can be brought into court upon the accusation of a private individual, it must be made to appear that his offense is nothing more than wilful refusal or neglect to perform official duties, or charging and collecting illegal fees.”
As applied to this ease, the first section of the statute has reference to crimes committed by an officer, whereas the second relates entirely to nonaction on the officer’s part in the performance of official duty. From the evidence there appears to have been most aggressive action on Beazley’s part in violation of the criminal statute against bribery (sec. 10824, Rev. Codes 1921), and therefrom it would appear that he himself had been guilty of such crime, constituting malfeasance in office. The acts described in the accusation, and not the con
elusion of the pleader as to their legal effect, determine the quality of the conduct charged.
(State
v.
Hessler, supra; State
v.
Beazley, supra.)
So likewise, it must be held that the character of evidence offered in support of the accusation, rather than the accusation itself, determines the character of the offense committed. Thus in this case there is a jurisdictional variance between the accusation and the evidence.
When this case was previously before us on the question of the character of the accusations, it was said: “As the accusation does not allege culpability of the sheriff in receiving the bribe, it does not charge him with wilful or corrupt misconduct or malfeasance in office. True, the statements in the accusation tiave a suspicious aspect. The fact that the defendant received the bribe and then did not arrest the briber justifies a suspicion, almost amounting to an inference, that in receiving the bribe the defendant did so with a corrupt motive.”
The proof removes all doubt as to the nature of the offense, and from it it is demonstrated that the offenses complained of are controlled as to procedure by the provisions of section 11688. From the evidence the defendant appears to have been the principal offender, and the fact that another participated with him in the commission of a crime does not so relieve him of culpability as to make him guilty of nonfeasance in office for his failure to arrest his accomplice. As was properly observed by this court respecting one of the charges against the defendant, when the sufficiency of the accusations were under consideration by us, “if the accusation be true, the defendant’s participation in the things done constituted,
malfeasance
in office, and it does not detract from the affirmative character of his acts that the accusation alleges that he wilfully neglected and refused to perform the duties of his office when he did not arrest his partner in guilt.”
Manifestly, upon an accusation of
nonfeasance
in office, the court is without jurisdiction to enter a judgment such as was done in the case before us upon evidence showing
maB
feasance.
The officer may not thus be denied right to have his official conduct, complained of, investigated by a grand jury, or denied his right to a trial by jury. Jurisdiction in the court to hear a particular matter may be secured by the filing of an appropriate pleading alleging requisite ultimate facts, but such allegations must be sustained by proof showing a
prima facie
case within the jurisdiction of the court; otherwise it is not vested with power to enter a judgment. The jurisdiction of a court to entertain an action is acquired by the filing of an appropriate pleading, whereas jurisdiction to render judgment is dependent upon the character of the evidence introduced in support of the complaint.
We agree with the contention of counsel for the defendant that it is a fundamental concept of law that one may not be tried and convicted for an offense distinct from that which is charged; so that an officer may not be tried upon an accusation charging
nonfeasance
in office, and convicted and removed from office upon proof of
misfeasance
or
malfeasance.
The proof established the defendant’s guilt of malfeasance in office, and thereupon it must have at once become apparent to the court that the prosecution should have been instituted as prescribed by section 11688 of the Revised Codes of 1921; and, accordingly, it was without jurisdiction to enter the judgment. It would be just as reasonable to hold it to be within the jurisdiction of a court to find a defendant guilty of a misdemeanor upon proof of the commission of a felony of a character which does not include the lesser offense. And it is elementary that one may not be charged with a specific offense and convicted on another distinct and nonincluded offense.
Although the defendant may be guilty of a felony,
i. e.,
the crime of bribery, constituting that which is denominated as mal.feasance in office, yet such a short cut to effect his summary removal from office as has been attempted here, desirable as it may appear, is not warranted.
Rehearing denied December 9, 1926.
As it is clear that the court was without jurisdiction, the judgment is reversed and the cause is remanded, with directions to dismiss the proceedings.
Reversed and remanded.
Mr. Chief Justice Callaway, Associate Justices Stark and Matthews and Honorable Henry G. Rodgers, District Judge, sitting in place of Mr. Justice Holloway, disqualified, concur.