38 Ark.] MAY TERM, 1882. 519 State v. Graham. STATE V. GRAHAM. 1. INDICTMENT: Must allege the facts, not a conclusion of law. An indictment must allege the special matter of the whole fact with such certainty that the offense may judicially appeal to the court. It is not sufficient to charge a conclusion of law. 2. SAME: Charging offense in language of the Statute. It is sufficient, as a general rule, to charge a Statutory offense in the words of the Statute; but when a more particular statement of the facts is necessary to set it forth with requisite certainty, they must be averred. 3. SAME: Charging officer with refusing to act on information. An indictment against a justice of the peace for failing to proceed against one for carrying a pistol as a weapon, must allege that the justice had information of the offense from the oath of some person, or that he had personal knowledge of it. 4. CRIMINAL STATUTES: Construed strictly. Pistol Act of 1875. Criminal Statutes must be strictly construed, and no case brought by construction within a Statute unless it is completely within its words; and the Act of February 16th, 1875, imposing a penalty upon justices of tbe peace for failure to enforce its provisions against carrying arms, does not apply to mayors of town. APPEAL from Izard Circuit Court. -HoN. R. H. POWELL, Circnit Judge. STATEMENT. At the June term 1881 'of the Circuit Court of hard county, the following indictment was found against the ap-pellee: State of Arkansas] YS. Indictment for nonfeasance in office. J. IL Graham j The grand jury of Izard county, in the name and by the authority of the State of Arkansas, accuse J. al. Graham of the crime of non-feasance in office, committed as follows, to-wit The said J. H. Graham on the twelfth day or March, A. D. 1881, in the county and State aforesaid, then and there •
520 SUPREME COURT OF ARKANSAS, [38 Ark. State v. Graham. being mayor of the incorporated town of Melbourne' in said county and State, and having legal information that one W. P. Cook had committed the offense of carrying a pistol, as a weapon, within the incorporation of said town, unlawfully did fail to proceed against the said W. P. Cook, as required by law, against the peace and dignity of the State of Arkansas." The defendant demurred to the indictment for insufficiency. The demurrer was sustained, and the State appealed. C. B. Moore, Attorney-General, for Appellant. By Act of March 9th, 1875, Sec. 45, mayors of incorporated towns are given full powers and jurisdiction of a justice of the peace, and while acting in such capacity they are, to all intents and purposes, conservators or justices of the peace in all matters civil or criminal arising under the laws of this State. A mayor, by virtue of his office, is, for the purpose of enforcing State laws, a justice of the peace, and .as such should be held to a strict account of his stewardship, and by Act of Feb. 16th, 1875, Sec. 3, p. 156, is responsible for abuse of his high trust. J. L. Abernathy, for Appellee. I. The indictment does not specifically allege that Mar-shall was an incorporated town. 2. It does not show in what manner the defendants failed to proceed against Cook. 3. Sec. 3, Acts 1875, p. 156, only applies to justices of the peace. Criminal laws must be strictly construed. 4. Officers of incorporated towns are not punishable by indictment in the Circuit Court for malfeasance, misfeasance or non-feasance in . office. Such offenses are exclusively within the jurisdiction of the corporation.
38 Ark.] MAY TERM, 1882. 521 State v. Graham. 5. The indictment is uncertain in this: it does not show whether defendant failed to proceed against Cook for an offense against the incorporation of Melbourne or against the State. HARRISON, J. The indictment did not set forth the means by which the defendant was informed that Cook had committed the alleged offense. It merely charged ' a legal conclusion, without setting forth the facts from which it was drawn or inferable. An indictment should set forth the special matter of the whole fact with such certainty that the offense may judicially appear to the court ; and it is not enough to charge a conclusion of law. 1 Whar. Crim. Law, Sec. 285. The indictment here, it is true, follows the language of the Statute, Act of February 16th, 1875, "to prohibit the • carrying of side arms and other deadly weapons ;" and it is as a general rule, sufficient to charge an 'offense created by Statute in the words of the Statute, but the rule is subject to the qualification that where a more particular statement of facts is, necessary to set it forth with requisite certainty, they mnst• be averred. To set forth the offense with sufficient certainty and definiteness, if the defendant were subject to indictment under the Statute, it should have been charged _that information of Cook's offense had been given him on the oath of some person, or that he had iiersonal knowledge of it. But we are of the opinion that as the Statute only speaks of justices of the peace, it is in its application confined to them, and has no application to mayors of cities and towns, and that the defendant could not be indicted under it. Criminal Statutes are to be strictly construed, and no case is to be brought by construction within a Statute unless it is
522 SUPREME COURT OF ARKANSAS, [38 Ark. completely within its words. HAWKINS says : "No parallel case, which comes within the same mischief, shall be construed to be within the purview of it (the Statute), unless it can be brought within the meaning of the words." 2 Hawk., P. C. 188, Sec. 16. And Bishop says : "If a case is fully within the mischief to be remedied, and is even of the same class, and within the same reason as other cases enumerated, still, if not within the words, construction will not be permitted to bring it within the Statute." Bish. Stat. Crimes, Sec. 220. The demurrer to the indictment was rightly sustained. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.