The opinion of the court was delivered by
Brewer,. J.:Defendant was convicted in the district court of Mitchell county upon an information charging “willful and malicious oppression, partiality, misconduct, and abuse of authority, in his official capacity of a justice of the peace,” under § 207 of the crimes act, page 363 of Gen. Stat. That section reads: “Every person exercising or holding any office ■ of public trust, who shall be guilty of willful and malicious oppression,” etc. The facts as they appear were, that the defendant, a justice of the peace, after rendering a judgment against one Fred. E. Smith for $26.58 debt, and $13 costs, required a bond for appeal in the sum of $350, and refused to approve the surety offered. He claimed that he was advised by plaintiff’s counsel, and so believed, that the bond must be large enough to cover costs in the district court, and that he was also advised by several disinterested parties that the surety offered was wholly insufficient. Upon the trial the court gave this instruction: “ Gross ignorance of law, in a case like this, amounts to criminal intent.” The same doc*399trine was recognized in several other instructions. Is this the law? If it is, it makes the office of a justice of the peace attendant with more dangers than is ordinarily supposed. These officers are seldom lawyers; they are chosen not on account of their knowledge of the law, but on account of their supposed good sense. It may be, and often is, that they are deplorably ignorant of the decisions of the courts, the accepted construction of statutes, and the well-settled rules of evidence and practice. They may be “ grossly ignorant” as to these matters. Shall they, intending to do right, and exercising the best judgment they have, be punished criminally for their gross ignorance? Take this very case. The bond required was unnecessarily large, but the statute does not fix the amount. It says it shall be “ in a sum not less than fifty dollars, nor less than double the amount of the judgment and costs.” If the justice, on the suggestion of plaintiff’s counsel, makes it large enough to cover the possible costs in the district court, or even larger than was necessary for that, and acts in good faith, shall he be punished criminally for his error? Or, if in the same good faith he rejects a surety, in fact good, but .whom he believes from the information he has received to be insufficient, must he be fined, or sent to the county jail, for his error? We cannot think this is the law. The grossness of the error may be a circumstance tending to show an intent to do wrong, mayi perhaps in some cases be sufficient to sustain a finding of' such intent; but that is as far as the law will go. It is a question of fact for the jury to determine whether the erroneous ruling indicates ignorance of the. law, or an intent to do wrong. If the latter, it may be criminal. If the former, not. Gross ignorance is not, in a case like this, the equivalent of a criminal intent. It is, by the statute, only “ willful and malicious ” conduct, that renders a, party guilty; and no matter how ignorant he may have been, or how grossly he may have erred, he has not violated the statute unless his acts were willfully and maliciously wrong. See State v. McDonald, 4 Harr. (Del.) 555; State v. Porter, 4 Harr. 556; Common*400wealth, v. Shed, 1 Mass. 227; 1 Bishop Cr. Law, §§ 299, 320, 3d ed.; Wharton Am. Cr. Law, pp. 833, 836; Clark v. Spicer, 6 Kas. 440.
The judgment will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.