The Elk Mountain pilot., 1924-01-10
THE SUPREME COURT DECISION

accordingly held and the result
trey satisfactory. There is material dispute
the commissioners authorization for refreshment
erainment, their allowance of the bills therefor
the payment the by the county, save as to the
single question of Intoxicating liquor On that subject
it the contention of the people that such authorization
allowance and payment, included approximately $4,000
for whskey 1t is the contention of defendants that
qud furnished by Whaen, Knowles and the county
clerk; that so far Knowles and Whaen
their action in the premises personal Individual;
hat neither as commissioners otherwise did they
horize the purchase of liquor Gunnison
County nor knowingly allow any claims therefor; and
that the county clerk made the bills concealed there
in liquor Claims under such designations conveying
passengers" and miscellaneous expense" Slipped
them over the commissioners Both positions are
supported by evidence.
The principal points here urged The indict-
ment charges violation of official duty 2The statute
in question has application to office at the
time of the filing of the Indictment 3-The er-
oneousy instructed the jury to the meaning of the
terms willfully and "corrupty" 4-Defendants
quested instruction No 80 erroneously refused s.
The admitted allowance was not shown to be in
violation OF the statute the evidence insufficient
support the verdict and the motion for trial should
have been granted
lit said that it is par. the of Coun-
y Commissioners o expend county funds and that the
indictment fails to charge part of their duty to
cause to be spent" said funds The indictment charges
defendants with corruptIy causing the county money to
be spent and the bill of particulars informs them that
this charge is based their allowance of certain claims
Those claims could only be allowed by the commissioners
Such allowance would "cause" payment by the
If the claims corruptly allowed the
by that act corrupt caused the county money spent
ue1enQantS
point upon the decision of this court in schraeder
eople--Colo.--; 215 Pac. 1863, wherein we held
that an information charging violation of official duty
not absolute one" must rcte the fact which makes
the duty absolute. In that sheriff charged
with extorsively receiving money for emitting
warrant issued by Justice the Peace The informa-
ton did not allege that the delivered
sheriff for service Upon such delivery duty
rested The warrant might have been delivered
stable If duty devoved upon the sheriff. If in
the instant the school board and the county
soners had concurrent authority to allow the claims in
question it would be alege in the Indictment
that they were presented for allowance to the commits
sioners The Schraeder would then be point In
the light of the information contained in this Indictment
and supplemented by the bill of particulars that author
ity has application.
2-When this idictment filed the of defend
ant Whaen had expired and for that he insists
that the statute is not applicable to him The argument
is based upon that portion thereof concerning removal
from Office 1t is inqenousy conceived and skfullv
presented but is farfetched long The leg
slatve intent merely to provide additional penalty
in aggravated cases and where applicable is. think
clearly apparent Had the specifically directed
that the fine imposed should be perpetual lien upon the
defendants real estate it might with equal force have
been argued that the act applicable only to free
holders.
3 Objection is made because the court did not
specifically instruct the jury that defendants intention
to obtain for themselves. third unlawful
gain at the expense of the county ella
ment of the ofense. The jury instructed that the
'ct charged must be done vciously wckedy. with
Knowledge that it wrong unlawful and done with
bad purpose intent and without ustifabe excuse
That the element of wfulness was thereby fully COW
cred requires argument and the appears us
true as to the element of corruption Authorities are
cited which to support defendants position but in
those different facts required different instructions
If the fact charged depended entirely its corrupt
character the element of unlawful gain it would of
be necessary instruct Counsels definition
in the instant is too NARROW The knowing and will
full employment of unlawful attain just
ends such for instance the of funds the
bribery of jury to return just veict constitute
corrupton such unlawful means for the in
jury of another although gain may thereby to
anyone.
4-Defendants' requested instruction No 80. refused
fContinued Page Twol