consideration in this case. That is a matter which will be brought to the attention of the court should a verdict of guilty be found, and which it would be proper for the court to take into consideration in pronouncing judgment upon the verdict.”
In the instruction numbered 7, the law governing the compensation which county commissioners may lawfully demand and receive for their official services was correctly stated to the jury, and it was quite proper to state to the jury, as was done, that any amounts received for official services in excess of the statutory fees were illegal. But the learned court, in our view of the statute under which the indictment is framed, erred to defendant’s prejudice in using the following language: “Now, gentlemen, 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, itis your duty to return a verdict of guilty.” This language construes the statute under consideration in such a way as to make the act of demanding and receiving pay upon a purely private and strictly non-official claim a criminal act. We are clear that the statute has no such meaning. It is true, in this case, that the claim for the use of the defendant’s team was lumped with the defendant’s claim for his per diem while engaged in official duty as a commissioner of the county board; and likewise true that the bill showed on its face that the teams were used concurrently, and for the same number of days charged for by defendant for official services. Such irregular mode of presenting and allowing a claim not itemized may be punishable under other sections of the Code; but we are quite sure that the manner of making out and presenting a claim cannot change its essential nature, nor convert a demand for the use of a team into a criminal demand for a “gratuity” for “doing an official act.” The claim for the use of a team is based on valuable services, which services are separate in kind, and private in nature, and hence the claim is not a demand for an excess of fees. Neither is it a demand for “doing an official act.” Much less is it a demand of a gratuity or reward for doing an official act for which the law allows a fee or compensation, which ele-
