Cleaveland v. State , 34 Ala. 254 ( 1859 )

R. W. WALKER, J.

By section 3225 of the Code, as it is found in the printed copy, any justice, clerk, sheriff, or other offieer, “who knowingly takes for services not actually rendered, other or greater fees than are allowed by law for any services done by him, is guilty of extortion,” &c. By reference to the manuscript Code deposited in the office of the secretary of state, we find that the word “or,” after “rendered,” is by a typographical error left out of the printed copy; so that, according to the true reading, any officer named is guilty of extortion, if he'“knowingly takes for services not actually rendered, or other or greater fees than are by law allowed for any services done by him.”

2. The court charged the jury, that there were two items in the bill of costs introduced in evidence, for which, the defendant bad no right to charge — namely, the fees for levy of the attachment, and the issue of the summons of garnishment. The bill of costs was, upon its face, designed to embrace the costs both of the justice and constable; and those to which the coustable was entitled must be considered as having been collected by the justice for him. Construing the charge in connection with the evidence, it is obvious that the jury must have understood it, and so we presume the court intended it, as an instruction that the fees alluded to did not constitute a part of the legal costs of the case. In reference to one of these items, we think the court erred. By the “act to regulate the fees of constables in the city of Mobile,” approved January 31st, 1846, (Acts ’45-6, p. 163,) constables are allowed 75 cents for levying an attachment. In this case, an attachment was issued, but was not levied otherwise than by the service of a summons of garnishment upon a person indebted to the defendant in attachment: We think that this was a levy of the attachment, within the meaning of the act just cited; and that the constable was entitled to the prescribed fee therefor. In Thompson v. Allen, 4 St. & P. 184, this court said : “The statute treats a levy upon property by attachment as equivalent to the personal service of process, and the summoning of one indebted to the defendant is the levy of the attachment upon property.” See, also, Tillinghast v. Johnson, 5 Ala. 514 ; Drake on Attachment, § 453.

3. The court also charged, that “if the defendant had knowingly made such charges, and received them in his official capacity,” the State had made out its case. This language is, perhaps, open to criticism, as being calculated to mislead the jury. According to our view of the statute, the officer charged with extortion is not guilty, unless it appears that he has designedly made charges for services which he knew had not been rendered, or for which he knew that no fees, or fees other than those charged, were allowed. It may be that, from proof that the charge was made for a service which had not been rendered, or for a service for which the law did not’ allow the fee collected, tbe jury might feel authorized to infer that the fee was knowingly taken within the meaning of the statute. But an officer may, in one sense, knowingly make the charge, and receive the fee, while acting under the bona-fide belief that the services had been rendered, and that the fee was legally due; and in that ease, we do not think that he should be considered subject to punishment under this law. 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 eorrup t intent which is the essence of the offense. — 2 Bishop’s Cr. L. §§ 326-7, 331; Wharton’s Am. Cr. L. §§ 2508-9; Respublica v. Hannum, 1 Yeates, 71; Runnells v. Fletcher, 15 Mass. 525 ; Commonwealth v. Shed, 1 Mass. 227; People v. Whaley, 6 Cowen, 661; 1 Bishop’s Cr. L. §§ 227, 229, 233, 240, 242, 253.

When an officer, who is applied to for a bill of costs by aperson liable to pay them, makes out a bill in which less costs in amount are taxed than are really due, and collects the same, is he guilty of extortion under section 3225 of the Code, if, though he has omitted items which he was legally entitled to collect, he yet charges and receives other fees for services which were not rendered ? If the settlement was designed by both parties as a settlement of all the costs of the case, we are not now prepared to say that the officer would be guilty of extortion, unless the fees collected amounted, in the aggregate, to a larger sum than the fees which he was authorized to receive. Without at this time expressly deciding the question here suggested, it is at least clear, that the fact that the officer had collected, in settlement of the costs,' a less amount in the aggregate than he had the legal right to demand, would be a strong circumstance denoting the absence of that intention to collect more costs than he was authorized to take, which seems to be the chief constituent of this offense. — 1 Bishop’s Cr. L. § 253, § 424, and authorities supra.

Judgment reversed, and cause remanded.