13th, committee work to Moreton, one day with team, $6.” No oral or other evidence was offered explanatory of these bills; the prosecution claiming that such bills, when presented by and paid to an executive officer, constituted the crime, and no further testimony was needed. At the close of the testimony for the state, defendant moved the court to advise the jury “that the evidence adduced on behalf of the state is insufficient in law to warrant a conviction.” The motion was denied, and defendant excepted to the ruling. For reason hereafter given, we hold that such ruling was prejudicial error.
Among the instructions given in the charge to the jury, and duly excepted to, were the following: (4) “Now in this indictment the word ‘fee’ is used instead of the word ‘emolument.’ I charge you, as a matter of law, that the fact that the exact wording of the statute has not been followed is immaterial. That the word ‘emolument’ is sufficiently broad to include the word ‘fee’ or the word ‘compensation.’ Therefore, the indictment in that respect is sufficient.” (6.) “Now the particular charge upon which the prosecution in this case relies for a conviction is that this defendant, while acting as county commissioner, and in the performance of his official duties, charged for the use his team, or for the use of a team.” (7) “Now, gentleman, if you find under the evidence in this case, beyond a reasonable doubt, that this defendant made a charge and received compensation accordingly from the county, for the use of his team while he was engaged in the performance of his official duty, it is your duty to return a verdict of guilty. The statutes with regard to the fees of county commissioners is plain, and not ambiguous. There is no chance for different persons to place different constructions upon the statute. The only fees they are allowed to charge, so far as I now remember the law, is three dollars per day for the time engaged in their official duties, and also five cents per mile for travel, and, if he has made any other charges those are illegal.” (9) ‘Now, gentlemen of the jury, that is all there is in this case. The question as to this defendant’s intent, whether he honestly and actually believed he had the right to make these charges, is not a matter for you to determine. You should not take that into
