¶1This was an indictment against Williams, charging him with malfeasance in office, as the sheriff of Warrick county. The indictment, after setting out a decree of the Warrick Circuit Court in favor of James C. Graham, against the unknown heirs of Patrick Donagho, the issuing of an execution, and the levy thereof on a certain tract of land, proceeds as follows:
¶2“ And the jurors aforesaid,” &c., “ do further present that the said Williams, so being sheriff of the said county, and while acting as such, at and during the said sale of the said land, unlawfully and knowingly did then and there procure the said Nicholas Taylor to bid off and buy the said tract of land at said sale for the use and benefit of the said Williams, so being sheriff as aforesaid, and that the said Taylor did then and there bid off and buy the said tract of land for the said Williams, he being then and there sheriff as aforesaid, with the intention then and there to cheat and defraud the said unknown heirs of Patrick Donagho, in the sum of one hundred dollars,” &c.
¶3The Court quashed the indictment, and the state brings it to this Court.
¶4The indictment was predicated on s. 5, c. 104, acts of 1841, p. 185, which is in these words:
¶5“ That whenever any officer known to the constitution or laws of this state, from whom an oath and bond of office are required, may be knowingly guilty of any act or omission which shall amount to a breach of his official bond, he shall be deemed guilty of malfeasance in office, and upon conviction thereof, he shall be fined in any sum not less than ten, nor more than fifty dollars; and whenever any such officer may be guilty as aforesaid, with in*395tent to defraud or injure any person or persons, body corporate or politic, he shall be deemed guilty as aforesaid, and, upon conviction thereof, shall be fined in any sum not exceeding one thousand dollars, and imprisoned in the jail of the proper county for any determinate period; or fined as last aforesaid, and imprisoned at hard labor in the state prison, for any term of time not less than one, nor more than fourteen years, according to the circumstances of the case and the sound discretion of the court or jury trying the same.”
¶6This act was not incorporated in the revision of 1843, but was revived and continued in force by an act approved January 13, 1844. See acts of that year, p. 99.
¶7There can be no question but that the offence described in the indictment did amount to a breach of the sheriff’s official bond. Section 428, c. 40, R. S. 1843, expressly prohibits any officer making a sale on execution, from becoming a purchaser, either directly or indirectly, at such sale. The infringement of a positive law is such a violation of his duty as amounts to a breach of his bond. See The State ex rel. Chapman v. Lines, decided at the present term.
¶8There is, however, a fatal defect in the indictment.
¶9It will be observed that the statute creates two distinct offences, different as to the extent and kind of punishment. The first, which consists in “knowingly being guilty of any act or omission, which amounts to a breach of his official bond,” is punished by fine only, not exceeding 50 dollars. The indictment was found at the April term, 1852, and the sale is alleged to have taken place on the 18th day of May, 1850. The prosecution for this offence was consequently barred by the statute. R. S. 1843, c. 54, s. 4.
¶10The other offence created by the act, embraces an additional element. It enacts that whenever the officer shall be guilty as aforesaid, with intent to defraud or injure any person, &c., he shall be subject to indictment, &c., and the punishment is fine and imprisonment, or confinement in the state prison for not less than one, nor *396more than fourteen years, at the discretion of the jury. The latter offence is not barred by the statute.
¶11The misdemeanor is well described. It sufficiently charges that the sheriff indirectly purchased at the sale, by procuring Taylor to buy, and were this offence not barred by the statute, the indictment should be sustained.
¶12But in the description of the larger offence, the material allegation is wanting. The intent to defraud is the gist of the offence. In the indictment, the intent to defraud is alleged to have existed on the pai’tof Taylor, but not on the part of the sheriff. This was not sufficient. Being of the substance of the crime, it ought to have been charged to exist in the sheriff, and not alone in the person through whom he is alleged to have made the purchase.
¶13The judgment is affix’med.
¶14Ante, p. 351.