Poole v. State , 22 Tex. Ct. App. 685 ( 1887 )

Hurt, Judge.

This case was a conviction for extortion. From the indictment it is doubtful whether it was drawn under Article 352 of the Penal Code or under the act of February, 1883. If it was meant to charge the offense under Article 352, it was defective in not charging that appellant received higher fees than are allowed by law. If it was intended to charge a violation of the act of 1883, it was equally defective, in that it does not allege that he received fees when by law he was entitled to none for the service performed.

From the statement of facts it appears that appellant held the office of county attorney for Newton county, and that a prosecution was pending before the justice of the peace of precinct No. 1 against one Louis Starke, for the offense of threats to kill. It was in evidence that W. H. Starke paid appellant five dollars to dismiss said prosecution ; that the amount was received by him as a fee, and that he thereupon dismissed the case. The indictment formally charges these facts, except there is no added allegation that appellant received the money as fees, when he was entitled to none for such services. This is necessary to the indictment’s sufficiency. (Willson’s Crim. Forms, No. 156, p. 85.)

The judgment is reversed, and the prosecution under this indictment dismissed.

Reversed and dismissed.