Sneed, J.,
delivered the opinion of the court.
The plaintiff in error was indicted in the Circuit
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Court of Madison county for the offense of profanity. He appeared and pleaded guilty and threw himself upon the clemency of the court, whereupon a fine of five dollars and the costs were adjudged against him. The clerk made a memorandum of the fine upon his 'blotter, but before its entry upon the minutes of the court a case was called for trial in which the plaintiff in error was the prosecutor, and upon the trial thereof the fact was developed that in the course of the difficulty which led to the latter case, the plaintiff in error was drunk, and was guilty of very unbecoming conduct in the use of vulgar and profane words, and otherwise. The fact was also developed that he was at the time an acting justice of the peace for the county of Madison. .The court thereupon directed the clerk to embody in the judgment already rendered upon his indictment for profanity the further order that the plaintiff in error be dismissed from his office as a justice of the peace, which was accordingly done.
This was error. The statute makes such a state •of drunkenness, as to incapacitate a judicial, ministerial or executive officer for a proper and rational discharge of the duties of his office, a misdemeanor in office, and upon an indictment or presentment for such an offense he may be convicted and dismissed from office, arid be disqualified by the judgment of the court from ever holding office under the Constitution and laws of this State: Cede, 4817, 4818a; Thompson & Steger. And this wholesome statute applies in its terms to all officers alike. But the offender must be indicted for
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the particular offense, and indicted as an officer. The Constitution provides that misdemeanors in office by a justice of the peace shall be punished by indictment: Art. 5, sec. 5.
The plaintiff in error was indicted as a private citizen for profanity, and not as a justice of the peace for a misdemeanor in office.
The judgment of dismissal from office was therefore erroneous, and the plaintiff in error is entitled to resume the functions of his office.
Reverse the judgment.