Commonwealth v. Saulsbury

Opinion by

Mr. Chief Justice Paxson,

The appellant was indicted and convicted in the court below of the offence of extortion. It appears that on the 23d of December, 1889, he was appointed deputy constable for Manor township. His appointment specified that he “ is appointed deputy constable of Manor township in accordance with the terms and provisions of the act of 9th of May, 1889, and that he shall exercise and possess all the powers of policemen of the cities of the commonwealth and that said appointee shall be wholly paid by private subscriptions, and the county of Armstrong, or the township of Manor shall in no way be responsible for his compensation.”

~ Upon the trial in the court below the learned judge admitted the evidence of Zeboster Ross, under objection by the defendant, to prove that one William Serf was arrested, and in the custody of Jerome Saulsbury, the defendant, and that the witness and Simon Wagner paid money to secure his release. The admission of this evidence forms the subject of the first specification of error.

We think the evidence should have been excluded. The indictment charged that the defendant had extorted money from John Bunke, Zeboster Ross, and Simon Wagner, while they were under arrest, under a warrant issued by Esquire Nelson. There was no charge of having extorted money from Mr. Serf, and it was error to permit evidence in regard to him to go to the jury. We cannot, of course, say how far this evidence may have influenced the jurors, but it is not competent, as a general rule, upon the trial for one offence, to permit evidence to be given . of another distinct, independent offence For this error the judgment must be reversed.

The second specification is not sustained. There was evidence that Bunke had been arrested on a warrant by the defendant on information of one Peter Schrite. This specification is based upon an erroneous statement of the facts. This remark applies equally to the third specification.

The fourth specification alleges that the court below erred in its answer to the defendant’s third point. The point is as follows : “The testimony showing that Jerome Saulsbury, the defendant, was appointed a deputy constable under the act of 9th of May, 1889, he is not such an officer of the commonwealth as comes within the provisions of the act of 31st of March, 1860, section 12.” . ■

The answer of the court was “ objection overruled and exception granted to defendant.” Assuming that this answer was intended to refuse the point we think it was error. The language of the act of assembly is: “If any justice, clerk, prothonotary, sheriff, coroner, constable, or other officer of this commonwealth, shall willfully and fraudulently receive or take any reward or fee to execute and do his duty or office, but such as is or shall be allowed by some act of assembly of this commonwealth,” etc. We do not think the defendant was an officer of this commonwealth within the meaning of this-act of assembly. He was merely a policeman of the township of Manor, exercising all the powers of a policeman in cities of this commonwealth. The order of the court appointing him to this position expressly provides that in accepting the said appointment the said appointee shall be paid wholly by private subscriptions, and that the county of Armstrong, or the town-' ship of Manor, shall be in no way responsible for his cojnpensation. While the act of assembly designates him as a deputy constable, it does not clothe him with the powers of a constable, but, in terms, confines his powers to those of a policeman.

While we think the learned judge below should have affirmed this point, we do not see that, its refusal could have injured the defendant. While not an officer within the meaning of the act of 1860, it does not follow that he may not be convicted of extortion. Extortion at common law is the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due: 7 Am. & Eng. Ency. of Law, 585. In general it may be said that any officer, whether he be a federal, state, municipal, or a judicial officer, and that every person occupying an official or a quasi official position, may be guilty of this offence. In England there is an instance of a conviction of a church warden, Roy v. Eyres, 1 Sid. 307; and of a collector of post horse duty, Rex v. Higgins, 4 Car. & P. 247; and that an attorney is an officer of the court, and may commit extortion: Adams v. Savage, Holt’s K. B. 179; Troy’s Case, 1 Mod. 5. An officer de facto may commit the offence:. 2 Bishop’s Criminal Law, section 392. Any person who acts as an officer, and has assumed an officer’s duties, cannot avoid liability by pleading the irregularity of his appointment.

If there was extortion in this case it was done under color of office, and under all the authorities this is sufficient to sustain an indictment at common law, and for this the defendant may be convicted, if the evidence justifies it, even if not liable under the statute.

The judgment is reversed, and a venire facias de novo awarded.