a contract for higher fees than allowed by law will not be enforced, nor will an officer be allowed to recover as quantum meruit a larger amount than allowed by law. But for extra services not required by law it seems that the officer may charge an additional compensation. Where the statutory offense is committed by unlawful demand, the filing of a claim before the county board for an allowance of fees payable by the county is a sufficient demand to constitute the crime if the fees are not due. Where the crime consists in unlawfully receiving, it is immaterial whether the money or property extorted is received as fees or to defendant's use, and it is sufficient to allege that it was extorted by color of office. The thing exacted must be something of value. As to the act, it is sufficient to constitute the crime that the officer exacts a greater fee than the law allows, or a fee for services not performed, or where no fee is allowed by law for the services rendered. So it is criminal to extort a fee before the officer is entitled to receive it.10 Thus, if the officer exacts a sum of money as his fees for charges, the lawful amount of which cannot be determined until an adjudication is made by the court, the demand thereof being enforced by the refusal to perform an official duty unless such charges are paid, he is guilty of extortion." Where, however, the service to be rendered is definite, statutes usually authorize the officer to require his fees in advance.12 The act of issuing or levying an execution for an amount in excess of that which may lawfully be collected is criminal; 13 and the return of the officer as 1 Gilman v. Des Moines Valley R. Co., 40 Ia. 200. Even if the fees contracted for are less than those allowed by law it seems that the contract would be invalid: Ibid. Smith v. McLaughlin, 77 Ill. 596. 'S. v. Bauer, 1 N. Dak. 273; C. v. Shed, 1 Mass. 227; Ferkle v. P., 16 Ill. Ap. 310. 'Brackenridge v. S., 27 Tex. Ap. 513. 'P. v. Whaley, 6 Cow. 661. But to receive money for a party to the case to be paid with the view of securing a settlement is not extortion in the officer: White v. S., 56 Ga. 385. 6 C. v. Cony, 2 Mass. 523. 7 Ferkle v. P., 16 Ill. Ap. 310. 8 S. v. Burton, 3 Ind. 93. Where a fee is allowed to a county judge for the trial of a case, it is criminal for him to claim such fee where the case is dismissed: Brackenridge v. S., 27 Tex. Ap. 513. 9 S. v. Merritt, 5 Sneed, 67. Contra, under Texas statute, Smith v. S., 10 Tex. Ap. 413; S. v. Smythe, 33 Tex. 546. 10 C. v. Bagley, 7 Pick. 279; Lane v. S., 47 N. J. 362. 11 S. v. Vasel, 47 Mo. 416. 12 Wilson v. C., 10 Serg. & R. 373. 13 S. v. Lawrence, 45 Mo. 492; Seany v. S., 6 Black f. 403; Williams v. S., 2 Sneed, 159. to the amount collected under the execution will not be conclusive as to the fact. The negotiation by an officer for a bribe for the omission of duty will not constitute extortion, though it will, of course, be punishable under statutes as to bribery." Any officer, whether federal, state, municipal or judicial, and every person occupying an official or quasi-official position, may be guilty of the offense. Thus, in England, a church warden and a collector of post-horse duty have been held punishable for extortion. So an attorney as an official of the court may be guilty of extortion. The offense may be committed by a collector of tolls,' and a pound-keeper. The officer may be de facto or de jure, but he must have acted in an official capacity,10 and the indictment must allege that he was an officer, designating his office." The indictment should charge not only the taking of unlawful fees, but the facts showing the fees to be unlawful. It should state what was demanded and received, and that nothing was due or what was due," and that the officer exacted an amount in excess of what was due; 14 and it must be charged that what was received was for official services.15 to the intent, the statute should be limited to cases where there is a purpose to extort, and it may be shown by way of defense that the officer had ground to believe and did believe that he was justified in taking the fees received.16 Therefore, the indictment should allege and prove that the officer acted knowingly and corruptly." It is not necessary, however, that the indictment charge the extortion to have been wilful, where it otherwise appears that it was intentional.18 I Williams v. S., 2 Sneed, 159. 2S. v. Pierce, 76 Ia. 189. C. v. Saulsbury, 152 Pa. St. 554. 4 Rex v. Eyres, 1 Sid. 307. 5 Rex v. Higgins, 4 C. & P. 247. 6 Adams v. Savage, Holt, 179; Troy's Case, 1 Mod. 5. 7C. v. Carmalt, 2 Binn. 235. 8 S. v. Critchett, 1 Lea, 271. 9 C. v. Saulsbury, 152 Pa. St. 554. 10 Collier v. S., 55 Ala. 125. 'n T. v. McElroy, 1 Mont. T. 86. 12 S. v. Maires, 33 N. J. 142; Halsey v. S., 4 N. J. 324; C. v. Saulsbury, 152 Pa. St. 554. 13 S. v. Coggswell, 3 Blackf. 54. As 15 S. v. Oden, 10 Ind. Ap. 136, 9 Am. Cr. R. 295, and note. 16 S. v. Cutter, 36 N. J. 125; Leeman v. S., 35 Ark. 438. 17 Triplett v. Munter, 50 Cal. 644. Evidence that the whole amount of the fee-bill was less than the amount authorized by law is admissible to negative the criminal intent as to one item of excessive charge: Cleaveland v. S., 34 Ala. 254. 18 S. v. Cansler, 75 N. C. 442. It is nec § 915. Indictment for misconduct or neglect. essary to set out the duty of the officer which has been violated;1 and for this purpose the facts or circumstances giving rise to the duty should be alleged; 2 but it is not necessary to allege the circumstances with great particularity. If the officer has an option between two methods of performing a duty, each must be negatived; or if there is a condition upon which the duty depends, the performance of the condition must be alleged. If the duty is one imposed generally, it is not necessary to specifically allege such duty. In general it is said that to show official misconduct it is necessary to charge such misconduct as would constitute a breach of the official bond." As indicating what is necessary in particular instances to show criminality on the part of the officer, it has been held that in charging a false return on a writ the indictment must state wherein the return was false; and that in charging a justice with taking too small bail the insufficiency must appear." § 916. Stating the office. The indictment should allege what office defendant held," and that he acted under color of his office." If the act is one that may be done by an acting officer or one assuming the office, it will be unnecessary to charge the fact of election or appointment and qualification; 12 and even if such an allegation is made it is sufficient to put it in general terms. If, however, the act is such that it would be of no force unless by a properly elected or appointed officer, the facts showing him qualified to act must be stated." 13 18. v. Hageman, 13 N. J. 314; S. v. Fishblate, 83 N. C. 654; S. v. Com'rs of Wayne Co., 97 N. C. 388. 2 S. v. Winright, 12 Mo. 410; Hall v. P., 90 N. Y. 498; S. v. Boyles, 7 Blackf. 90; S. v. Hunter, 8 Blackf. 212. Baysinger v. P., 115 Ill. 419; P. v. Burns, 75 Cal. 627. After verdict the general allegation of disregard of duty will be sufficient: S. v. Hoit, 23 N. H. 355. 48. v. Longley, 10 Ind. 482; S. v. Daniels, 44 N. H. 383; S. v. Fitts, 44 N. H. 621. Matters of defense need not be negatived: S. v. Harsh, 6 Blackf. 346. 5 P. v. Adsit, 2 Hill, 619; S. v. Bailey, 21 N. H. 185; S. v. Demerritt, 64 N. H. 313; S. v. Sanders, 2 Ind. 578; S. v. Hall, 97 N. C. 474. 6 S. v. Miller, 100 N. C. 543. 7 Lathrop v. S., 6 Blackf. 502. 8 Tibballs v. S., 5 Wis. 596. 9 P. v. Coon, 15 Wend. 277. 10 S. v. Lubin, 42 La. An. 79. 11 S. v. Pritchard, 107 N. C. 921; S. v. Kite, 81 Mo. 97. 12 S. v. Hoit, 23 N. H. 355; P. v. Coon, 15 Wend. 277. 13 Wilson v. C., 10 Serg. & R. 373. 14 C. v. Rupp, 9 Watts, 114; Edge v. C., 7 Pa. St. 275. § 917. Alleging the intent. If the breach of duty charged is in the discharge of a judicial office, it is not sufficient to allege the wrongful act as wilfully and knowingly done in the words of the statute, but it must be charged as malicious, corrupt and partial. And in any case if it is sought to charge culpable neglect of duty the indictment must allege the neglect as intentional and corrupt. If fraud is charged it is not necessary to allege the intent to defraud any particular person.3 § 918. Describing the act or omission.-In general, the neglect or misconduct must be definitely specified; thus, in the charge against road overseers for not opening a road as required, there must be a description of the road.' § 919. Removal; penalty.-A statute providing for removal of an officer for misconduct is not penal; and if the recovery of a penalty is provided for, the proceedings should be by civil action and not by indictment." 1S. v. Pinger, 57 Mo. 243; P. v. Ward, 85 Cal. 585; P. v. Ccon, 15 Wend. 277; S. v. Gardner, 2 Mo. 23; S. v. Hein, 50 Mo. 362; S. v. Odell, 8 Blackf. 396. 2S. v. Buxton, 2 Swan, 57; S. v. Kite, 81 Mo. 97; S. v. Hoit, 23 N. H. 355; S. v. Miller, 100 N. C. 543; S. v. Yarborough, 77 N. C. 524. But the charge need not be that the act was "knowingly" done if it is one forbidden by statute: S. v. Jones, 71 Miss. 872. 3 S. v. Morse, 52 Ia. 509. Hardemann v. S., 25 Tex. 179; S. v. Hail, 21 Tex. 587. In an indictment for cruelty to paupers their names must be stated or charged as unknown: S. v. Hawkins, 77 N. C. 494. If the indictment is for making 132 a fraudulent claim, it must be stated 5 S. v. Leach, 60 Me. 58. § 920. What constitutes.- A number of somewhat specific offenses, such as resisting an officer, breaking jail and tampering with witnesses, will be considered under sub-headings of this chapter; but aside from these it is, in general, criminal to obstruct the administration of justice; for instance, by destroying a dead body to prevent an inquest, the case being one in which an inquest may properly be held; by wilfully attempting to destroy public records,2 or carrying away such records;' or by harboring a criminal fleeing from justice; or by refusing as a county jailer to deliver over prisoners when served with a proper order; or by fraudulently causing another to be falsely convicted of a criminal charge in order to get him out of the way; or by advising resistance to an officer;' or by obtaining a judicial writ and keeping it for the purpose of impeding the official action of a public officer; or in general by obstructing an officer in the execution of his office. There can be no obstruction of justice, however, without knowledge that justice is being administered.10 1 Reg. v. Stephenson, 13 Q. B. D. 'U. S. v. Martin, 17 Fed. R. 150. 8 8 S. v. Lovett, 3 Vt. 110. In Texas malicious prosecution is made criminal: Dempsey v. S., 27 Tex. Ap. 269; Johnson v. S., 32 Tex. Ap. 58. 9 So held in case of a contempt of a justice of the peace though not amounting to a breach of the peace: Brooker v. C., 12 Serg. & R. 175. Bribery may be punished as a contempt: In re Brule, 71 Fed. R. 943. 10 Pettibone v. U. S., 148 U. S. 197. |