Defendant, charged by information with obtaining $600.70 from Missoula county by false pretense and fraud, was upon trial found guilty by a jury, and by the court sentenced to serve three years in the state prison.
*327From the judgment of conviction defendant appeals.
Defendant, county surveyor of Missoula county, was also a member and secretary of the Missoula' county airport board. With the consent and knowledge of the other airport board members, defendant made claim for and received $600 from the county for work of supervising, planning and preparing plans and specifications for rebuilding the airport runways'. This claim was made in the name of the Montana Engineering Company and defendant signed a name not his own, as secretary of such company.
The planning, construction and maintenance of the Missoula county airport are “county functions” and for county “pur1 poses.” R. C. M. 1947, sec. 1-822.
Defendant was a Missoula county officer, the county surveyor, on a salary fixed by law. As such county surveyor, under R. C. M. 1947, sec. 16-3302, it was his duty to “make all surveys, establish all grades, prepare plans, specifications, and estimates” for the county.
Section 16-3302 is a general statute relating to all surveys and all grades. Durland v. Prickett, 98 Mont. 399, 39 Pac. (2d) 652.
Defendant’s work on the airport runways was work which came within his duties as county surveyor. He was not legally entitled to the $600 claimed for such work for the reason that, “No county officer shall receive for his own use, any fees, penalties or emoluments of any kind, except the salary as provided by law, for any official service rendered by him * * R. C. M. 1947, sec 25-201. See State ex rel. Matson v. O’Hern, 104 Mont. 126, 65 Pac. (2d) 619; Peterson v. City of Butte, 44 Mont. 401, 120 Pac. 483; State ex rel Rowe v. District Court, 44 Mont. 318, 119 Pac. 1103; and Grady v. City of Livingston, 115 Mont. 47, 141 Pac. (2d) 346.
Testimony of defendant and other airport board members indicates the $600 claimed was compensation for services actually rendered the county and the method of making such claim was in conformity with advice given by a state examining *328officer. If this be true, it would tend to show good faith on the part of defendant and tend to show absence of the criminal intent necessary to establish the crime charged.
E. C. M. 1947, see. 94-5516, relating to removal of public officers by summary proceedings in part provides: “* * * if the charge be for the charging and collecting of illegal fees or salaries, the trial must be by jury, if the defendant so demands, and conducted in all respects and in the same manner as the trial of an indictment for a misdemeanor, and the defendant shall be entitled, as a matter of defense, to offer evidence of, and the jury under proper instructions shall consider his good faith or honest mistake, if any be shown, and the value received by the state, county, township, or municipality against whom the charges or fees were made.”
Under this section of our Codes it is the public policy of this state, in eases where a county officer is charged with collecting illegal fees, that such officer be entitled, as a matter of defense, to offer evidence of his good faith or honest mistake and the value received by the county. State ex rel. Holt v. District Court, 103 Mont. 438, 63 Pac. (2d) 1026.
The information alleges a violation of E. C. M. 1947, sec. 94-1805, and charged defendant “knowingly and designedly,” by presenting a “false and fraudulent claim,” dated November 16, 1950, “did obtain from said Missoula County the amount of six hundred and 79/100 Dollars.”
Over objection another claim, dated November 16, 1950, made by defendant in the amount of $552, for work in rebuilding the airport runways, was allowed in evidence. This was prejudicial error. Evidence of an offense not charged in the information is incompetent and inadmissible. State v. Searle, 125 Mont., 467, 239 Pac. (2d) 995.
Under the charge as laid in the information, instruction No. 10 relating to county officers being interested in contracts, and given over objection, should not have been given.
■ For .the reasons stated the judgment is reversed and the cause remanded to the lower .court for a new trial.
*329MR. CHIEF JUSTICE ADAIR concurs.