The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1908-11-10
incidentally, the Supreme Court
ReverseS Judgment of
Judge Howell.
FORMER CACHE COUNTY
SHERIFF THE DEFENDANT
New Rule Is Laid Down as to
Practice in Taking
Appeals.

Judge j. 4. Howell, occupying the
first district bench at Logan, in Au-
gust Of 1907 erred when he directed
the jury to return q verdict of not
guilty in the case OF Albert A, Law, as
county attorney Of Cache county,
against Thomas H. Smith. sheriff of
Cache county, for malfeasance in Of
flee, the supreme court holds in an
opinion handed down Monday after
noon, and the Judgment of the lower
court is reversed with directions to
grant new trial
County Attorney Law, on April %,
1907, fled an accusation against Sher-
III Smith to remove him from office for
alleged malfeasance under section 4565
were six paragraphs TO the accusation,
for Of which were abandoned. The
plaintiff relied mainly upon the second
for conviction, which charged that
Smith, after presenting and collecting
bill of sl3,95 for transferring three
prisoners from the Cache county Jail at
Logan to the state prison here. unlaw-
fully collected false bill for the same
thing from Cache county.
- Two Claims Produced
At the trial the two claims were pro-
duced and 1t was proved that they had
been collected by Smith, III fact, Smith
did not dispute this The plaintiff con-
tended that under the proof Smith was
guilty of felony. but if he was not
guilty of felony he was guilty of
malfeasance in Office and liable to re.
moval and asked the court 10 direct the
jury 10 return verdict of guilty. The
defense asked the court to direct a yer.
dict OF not guilty and Judge Howell
followed these directions, entering iudp-
ment djscharging the defendant, and
the plaintiff appealed,
The question for the supreme court 10
decide was whether the charge against
Smith OF the presentation of claim
for expenses against Cache county after
the same claim had been paid by the
state came within section 40s3, which
makes the presentation of fraudulent
claim a felony, and further if it be
held that il did not, did the defendants S
act constitute malfeasance in office'
The state auditor evidently knew
thai Smith, when he presented the bill
against the state. was not entitled TO
the money, but assumed that it be.
longed to him as a perquisitc Of his
Office, the opinion holds. There is no
law which recognizes such q claim, the
court says
Passing to the question of intent. the
court says that the defendant was not
necessarily guilty of a crime for pre-
ferring such claim, but the jury must
know that he knew he was not entitled
10 the money before il could find him
guilty. The trial court appeared to be
laborlng under the impression that un-
less the proof was sufficient TO Justify |
a conviction for felony the defendant |
could not be convicted of malfeasaucc,
and hence was not subject TO removal |
from office.
Province Of Jury.
Applying the law in the case the
trial court. il is held. was not authorized |
10 rule that the defendant was or was
20 say, after considering all the evi.
dence, whether Smith preferred the
claim with full knowledge that no had
no legal right to the money. If he did |
he was guilty of malfeasance; if he |
didn t, he was not. II is doubtful if,
under sections 4574 and 4575 of the |
statutes, the court may under any prose.
cutioc for removal from office direct |
A verdict OF guilty unless under plea
of guilty, il is held
one effect of the opinion is that un-
der the statutes malfeasance in Office |
does not necessarily constitute a crime !
because it does not call for fine or i'm.
prisonment. but only removal from Of |
fee, and therefore the proof TO convict
IN malfeasance need not be so strong
AS IN criminal cases. The opinion also |
lays down the rule Of practice in vogue |
in appealing cases to the supreme court,
the case Of Mohr Touse against the |
Consolidated Railway and Power com
pany being overruled as follows:
''All the orders, rulings and decisions |
made by the trial court during the trial. |
including the ruling in directing or re. |
fusing to direct verdict, and all oues- |
tions Of fact in equity cases on which |
the trial court has passed. including |
the findings, and also all errors in find, |
ings Of fact and conclusions of law |
made by the court in law cases, are be- |
fore this court for review without a |
motion for a new trial. The Touse case.
so far as it is in conflict with these |
conclusions, is overruled. -