White v. State

Bleckley, Judge.

1. The head-notes rule the law of this case, as we understand it. If the defendant was an officer de jure or de facto he could commit extortion; but not if he was a mere guard *389 or constable’s attendant. . The test of whether he was an officer or not is, whether he was in a situation to make a legal arrest on that particular warrant in the absence and without the co-operation of Fredericks, the sworn special constable. That is a question partly of law and partly of fact; and the court should have so dealt with it.

2. Even if he was an officer, the transaction was not extortion if he took the money in good faith, without any claim to it, and with a bona fide purpose to use it in accordance with Sheppard’s wish, in settling the prosecution. The reception of the money may have been improper' for such a purpose, but even if it was criminal, the offense committed was not extortion. In demanding his own costs, or those which, he is authorized by law to collect for other officers, the collecting officer (especially if negligent in the use of means to inform himself,) might not be excused by an honest mistake, for an excessive or illegal demand and collection; but to accept money as a sort of agept for the party voluntarily paying it, and agreeing to use it in settling a pending or threatened prosecution, is quite another matter. In the one case there is an official claim of right; in the other, none. It is not, however, absolutely requisite that the element of costs should be in contemplation in order to constitute extortion. If a ministerial officer should use his authority, or any process of law in his hands, for the purpose of awing or seducing any person into paying him a bribe, that would, doubtless, be extortion. So, in the present case, if the money was taken as a bribe, and the defendant was an officer, he would be guilty. In this aspect of the matter, the purpose and good faith of the defendant are of the utmost importance. Was the transaction corrupt? or was it simply improper or technically illegal, as contravening the letter and policy of the law applicable to the open and honest settlement of prosecutions ? .Was it in fact a kind of agency on the part of the officer to use the money in some open way to get the prosecution settled, or was that a mere pretext — a bribe to the officer being at the bottom — and this pretext merely glossing it over?

*390 3, 4, 5, 6, 7. The other' points are left to stand upon the statement of them in the head-notes.

Judgment reversed.