O. Kyle, for the defendant, cited Bishop's Criminal Law,' and authorities there referred to.2

John W. A. Sanford, Attorney-General, for the State.

BRICKELL, C. J. The statute under which the indictment is found inflicts a penalty on a public officer, compensated for official services by fees, who receives for services not rendered, the fee allowed if the service had been rendered, or any fee whatever, or who, for services rendered, takes other and greater fees than the law prescribes.3 The offense can not be committed, unless there is a right to demand a fee of the person paying it, or unless official service has been rendered for such person, for which a fee can not be demanded. The object of the statute is the punishment of the abuse of official power not the obtaining money by mere impropriety of conduct, or by fraud by persons filling official position. In Cleaveland v. State,4 it is said: "The statute was designed to reach officers who intentionally charge and take fees which they know at the time they are not authorized to collect. The design on the part of the officer to collect fees to which he is not legally entitled, constitutes the corrupt intent, which is the essence of the offense. Demanding money of a person for whom no official service has been rendered, and on whom the officer has no claim whatever, is no extortion. It may be a cheat, or it may constitute obtaining money under false pretenses; but it is not the offense against which the statute is directed." 5

In this case the money obtained from Reynolds was not for any official service rendered to him, nor was he under any obligation to pay for any service rendered to any other person. It was not extorted by color of office; and, however, great may be the moral impropriety of taking the money under the circumstances, it is not a criminal offense. A taking under color of office is of the essence of the offense. The money or thing received must have been claimed or accepted, in right of office, and the person paying must have been yielding to official authority. The rendition of services not official, and the acceptance of money for such services not in an official capacity, but as a private individual, acting wholly as such, and disclaiming any purpose to act as an officer, and not exercising official authority, however inconsistent with official duty may be the rendition of such service, is not the offense defined in the statute. There was evidence, uncontradicted, that the money paid the defendant was not for official services, but for advice as an attorney, in a matter on which he was under no duty to advise as an officer, and that he disclaimed acting as such in giving the advice, and, therefore, de

1 Vol. 2, p. 392.

* Cleaveland v. State, 34 Ala. 254; Dunlap v. Curtis, 10 Mass. 210; 4 Bla. Com., sec. 22.

R. C., sec. 3593.

4 34 Ala. 250.

Dunlap v. Curtis, 10 Mass. 210.

manded for it compensation as an attorney. Under these facts, though the defendant may have been guilty of official infidelity, the wrong was to the State only, and no wrong was done the person paying the money, that wrong is not punishable under this indictment. Private and public wrong must concur to constitute extortion.

The first and second charges requested by the defendant should have been given, and the court erred in refusing them. The judgment is reversed and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law.

EXTORTION-WHAT IS OFFICIAL EXTORTION.

SMITH V. STATE.

[10 Tex. (App.) 413.]

In the Texas Court of Appeals, 1881.

Official Extortion as defined in the Texas Penal Code,1 is the willful demand and reception by any officer authorized by law to receive fees of office, or by any person employed by such officer, of "higher fees than are allowed by law" for the services in question. If no fees were allowed by law for the services in question, then no prosecution under this provision can be maintained; and an indictment is bad which shows on its face that the services were not services for which any fees were allowed by law.

APPEAL from the District Court of Atascosa. Tried before the Hon. G. H. NOONAN.

The indictment was presented in November, 1879, and alleged that one G. W. Chapman had died in said county about the preceding 1st of July, leaving a will of which he appointed his wife the executrix, and exonerated her from bond or accountability to the courts, except to file an inventory of the estate; that Smith, the present appellant, being then and there the judge of the County Court of said county, did, at its July term, 1879, admit the said will to probate, and appoint the testator's widow to be the executrix of it, and that these were the only legal services ever rendered by him then or ever about said Chapman's estate; that no exhibits or accounts other than the inventory or appraisement, had ever been filed by the executrix, but that, on or about August 1, 1879, in said county and State, "the said W. H. Smith, so being judge of said County Court as aforesaid, did willfully and extorsively, and by color of his office, demand and receive of and from

1 art. 240.

C

the said Caroline Chapman, as executrix of the last will and testament of the said G. W. Chapman, deceased, higher fees than were or are allowed by law, to wit: the sum of $236.85, he the said W. H. Smith, as said judge, then and there claiming said sum of money to be due him as such judge for and as commissions at the rate of one-half of one per cent upon the aforesaid value of the estate, real and personal, of the said G. W. Chapman, deceased, whereas in truth and in fact no sum of money or fees were due the said W. H. Smith as such judge of the said County Court of Atascosa, of and from the said Caroline Chapman, as executrix of the last will and testament of the said G. W. Chapman, deceased, as commissions at the rate of onehalf per cent on the estate of the said G. W. Chapman, deceased. And so the jurors aforesaid, on their oaths aforesaid, do further say that the said W. H. Smith did, as such county judge of said county of Atascosa, willfully, extorsively, and by color of his said office, on the day and year last aforesaid, in the county aforesaid, demand and receive, in manner and form aforesaid, higher fees than were or are allowed by law, contrary," etc.

The defence moved to quash this indictment because it charged no offense, and alleged no facts constituting any offense known to the Penal Code; and the motion specified with particularity the many exceptions alleged against its sufficiency. The court overruled the motion to quash, and this is complained of by the appellants. A trial on the plea of not guilty ensued. The State put in evidence the will of Chapman, deceased, and its probate, together with the inventory of the estate, which aggregated over $40,000.

H. W. Chapman, testifying for the State, said that in the summer of 1879, he asked the defendant for his bill against the executrix, and was presented by the defendant with a bill which aggregated $236.85, consisting almost entirely of a charge of one-half of one per cent on the inventoried estate, the defendant said to witness that the bill looked large, but he believed it to be correct, and read some law to witness out of the Digest. As requested by the defendant, the witness left for him in bank at San Antonio the amount of the bill. This was all the evidence in the cause.

The jury found a verdict of guilty, and assessed a fine of $100 as the punishment. A new trial was refused, and the defendant appealed. D. P. Marr, for the appellant.

H. M. Holmes, for the State.

HURT, J. The appellant was indicted, convicted and fined one hundred dollars for a violation of article 240 of the Penal Code. Said article reads as follows: "If any officer authorized by law to demand or

receive fees of office, or any person employed by such officer, shall willfully demand or receive higher fees than are allowed by law, he shall be punished by fine not exceeding one hundred dollars for each offense." The indictment charges that the defendant received higher fees than was authorized by law, but it also sets out facts showing beyond all question that the fees demanded or received were not authorized by law. There was a motion to quash, which was overruled, the ruling of the court was excepted to, and the motion of the court is here assigned as error.

By reference to the above article,1 it will be found that to constitute the offense therein sought to be punished, these facts must exist: The person sought to be convicted must be an officer or a person employed by an officer. The officer or person so employed must be authorized by law to demand or receive fees of office. The law must have allowed fees for the service rendered, and for which the fees were demanded or received. The fees demanded or received must have been higher than those allowed by law. The defendant must have demanded or received these higher fees. There is no law in this State punishing the demand. ing or receiving of fees not allowed by law, by officers authorized by law to demand or receive fees. The offense (the other elements attending), consists in demanding or receiving higher fees for services than are allowed by law for these services. If this indictment had omitted the allegation that the fees demanded or received were higher than allowed by law, it would have been clearly defective. This allegation being imperatively demanded to make the indictment good, evidence showing that defendant demanded or received pay as fees not allowed by law would not have supported the indictment. We therefore conclude that if the indictment state facts from which it appears that the fees were not higher, but were unauthorized by law, it is bad, and should have been quashed.

Article 3830 of Paschal's Digest provided that "if any officer herein named shall demand or receive any other or higher fees," etc. Under this article the indictment charged that the defendant demanded fees greater than were allowed by law; and in specifying, alleged that the fees charged were for certain orders for which no fees were in fact allowed by law. It was held by the Supreme Court that the indictment should have been quashed.2 In Hays v. Stewart,3 Judge Lipscomb holds that, under an act which provides, "that if any of the officers herein named shall demand and receive any other or higher fees than are prescribed in the act for any services therein mentioned he shall be

liable to the party aggrieved for fourfold the fees so unlawfully demanded and received, to be recovered in any court of competent jurisdiction," that an action by the party aggrieved for the penalty under this act could not be sustained, unless the officer was entitled to charge fees. The act allowed the surveyor three dollars for each English lineal mile actually run. The surveyor charged for lines not actually run by him. There was no dispute as to the rate of fees, nor was there any evidence of an attempt to collect higher fees than the law allowed. The dispute in that case was about the surveyor's right to collect the fees for two lines at all. Under this state of case, the learned judge says: "It is a well established rule of law that in a suit to recover a penalty imposed by statute, the charge should be specifically made and fully proven. The statute imposing a fourfold penalty to be paid to the party aggrieved, besides a liability to be fined and removed from office, is highly penal in its character, and was doubtless intended to punish a willful violation of law, and not a mistake that might honestly be made."

The principle above enunciated applies directly and with great force to the case before us. Under the present act, as we have seen, the crime consists in demanding or receiving higher fees than are allowed by law. The amount of the fees being first fixed by law for specified services, higher fees can not be demanded without the party demanding the same being guilty of an offense, such as should be denounced and punished by our law. But on the other hand it frequently occurs that officers have reasonable grounds for believing and do believe that they are entitled to fees, and in fact they are not. Hence our code denounces the officer who demands or receives higher fees than are allowed by law, and not fees unauthorized by law.

As the indictment shows upon its face that the fees demanded and received were for services for which no fees were allowed by law, we are of the opinion that it was fatally defective, and should have been quashed. There were other items for services for which the law allowed fees, but the amount demanded for these was that which the law allowed, and no more.

For the error in overruling the motion to quash, the judgment is reversed and the cause dismissed.

Reversed and dismissed.

WINKLER, J., does not concur in this opinion.