State v. Kopper

65 Mo. 478

Opinion

Sherwood, C. J.

Defendant, a constable in Cape Girardeau county, was indicted for misdemeanor in office, under section 21, W. S. 488, for failing in his official capacity to collect a road tax placed in' his hands for collection, by Martin, the overseer. The trial had resulted in conviction, causing this appeal. The indictment is worthless, and in consequence, the conviction cannot be maintained, binder the act approved March 9, 1874, (Sess. Acts 139, Sec. 21), the county courts are required at the May term in each year,-to “designate by order the number of days each person, liable to work on public roads, shall work.” It is quite too obvious for argument, that until the making of such order, the road overseer would be powerless to take any step in the premises, possessing validity. This being so, it of necessity follows, that the indictment should have alleged the making of the order. Eor aught that appears on the face of that instrument, the delivery to the constable of the list mentioned in section 25 of the act referred to, was altogether unauthorized, consequently no liability resulted to tbe defendant because of his failure to make the desired collection. Other points of objection might be successfully urged against the indictment, but what has been already mentioned is sufficient to reverse the judgment, which is accordingly done.

All concur.

Reversed.