People v. Whaley , 6 Cow. 661 ( 1827 )

Curia, per

Savage, Ch. J.

An objection is taken to the indictment, that the defendant is not charged with taking the money, as fees, or to his own use. It was not necessary to lay the offence in that manner; it is sufficient that he extorted it by color of his office. Extortion signifies, in an enlarged sense, any oppression under color of right. In a stricter sense, it signifies the taking of money by any officer, by color of his office; either, where none at all is due, or not so much due, or when it is not yet due. (1 Hawk. B. 68, s. 1.) And the cases cited by the defendant’s counsel, do not shew any necessity for the averment insisted on.

The other questions relate to the correctness of the charge. I think it sound. The word non-suit, was prob ably used as synonymous with discontinuance; and though, perhaps, not technically correct, it could not mislead the jury. If the cause had become discontinued by the laches of the plaintiff, then the justice had no jurisdiction.; and as well the adjournment as the subsequent proceedings, were void. If void, then the defendant received from Butler, one shilling, by color of his office, which was not due. The amount of the note was due ; and, as the agent of Grant, the payee, the defendant had a right to receive it. The justice was authorized to enter ajudgment on the note, by confession; and we might presume it to have been so entered, were it not positively proved that it was entered as upon trial, and not upon confession.

The questions of fact and intent, were fairly submitted to the jury. It was their province to judge of both, and of the credibility of the witnesses. The jury have found, by the verdict, that the cause before the defendant, had become discontinued before he entered the adjournment; and that he received and demanded the money by color of his office, and with the corrupt intent charged in the indictment. These facts being proved, the offence was complete. We are not now to enquire whether the verdict is such as we might have found. We are not here to decide the fact, but the law. There was no error in the charge ; and I am of opinion, that the proceedings of the court below are not questionable in any view.