Brackenridge v. State

• Decision Date: 08 May 1889
• Citation: 11 S.W. 630
• Parties: BRACKENRIDGE <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 630

BRACKENRIDGE

v. STATE.

Court of Appeals of Texas.

May 8, 1889.

Appeal from district court, Travis county; W. M. KEY, Judge.

J. M. Brackenridge appeals from a conviction for demanding illegal fees. The indictment introduced in evidence was a former indictment against defendant for the same offense. Code Crim. Proc. Tex. art. 631, requires that a juror be asked if he is a qualified voter in the state and county, and if he is a householder in the county or a freeholder in the state; and, if he answers under oath in the affirmative, he shall be held a qualified juror until the contrary be shown by further examination or other proof.

Walton, Hill & Walton, T. H. Wheless, and H. T. Patrick, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

This conviction is under article 240 of the Penal Code, which reads: "If any officer authorized by law to demand or receive fees of office, or any person employed by such officer, shall willfully demand or receive higher fees than are allowed by law, or shall willfully demand or receive fees not allowed by law, he shall be punished by fine not less than $25, nor more than $100, for each offense." The charging part of the indictment is as follows: "That J. M. Brackenridge, in said county and state, on or about the 8th day of November, 1888, was then and there the duly-qualified and acting county judge of said Travis county, Texas, and as such officer was authorized by law to demand and receive fees of said office; and he did then and there, as such officer, unlawfully, extorsively, and willfully demand from said Travis county fees not allowed by law, that is, he did then and there, as such officer, unlawfully and willfully make out an account in writing against said Travis county, and certify that the same was correct, and present the same to the commissioners' court of said Travis county, at a term of said commissioners' court, and did then and there, willfully and unlawfully, demand that said commissioners' court approve said account against said Travis county for the full amount thereof, and order a draft to be issued upon the county treasurer of said Travis county in his (said Brackenridge's) favor, for the full amount of said account, when there was embraced in and a part of said account the sum of eighteen dollars, which was made up out of a fee of three dollars charged in said account in each of six criminal cases, charged for in said account as criminal cases, tried and finally disposed of before him, said Brackenridge, as county judge as aforesaid, in the county court of Travis county, Texas, and the said fee of three dollars in each of said six cases, aggregating eighteen dollars, was not allowed by law, because said cases were not in fact tried and finally disposed of before said Brackenridge as county judge as aforesaid, but were criminal cases which were dismissed in said county court without any trial whatever. That the said cases which the said fees were charged for and demanded were the following named, numbered, and styled cases in the county court of the said Travis county, to-wit:

                (No. 3,383) The State of Texas v. Abe Roy
                (No. 3,499) The State of Texas v. Jim Smith
                (No. 3,500) The State of Texas v. Joe Brown
                (No. 3,502) The State of Texas v. B. D. Silver
                (No. 3,507) The State of Texas v. Thomas
                              Williams
                (No. 3,521) The State of Texas v. W. A.
                              Kitchens;
                

— Against the peace and dignity of the state."

Exceptions to the indictment were presented and urged by the defendant, and were overruled by the court, and this ruling of the court is insisted upon as error. The exceptions are: (1) The indictment charges no criminal offense against the laws of the state of Texas. (2) The facts alleged in the indictment do not show a demand for fees not allowed by law. (3) The indictment only charges an application by defendant as a man for the approval of the account indicted. (4) The indictment fails to charge that the act indicted was done by defendant in his official capacity. (5) The indictment charges in whole and in part acts outside the performance of official duty.

We will consider the three last exceptions first, and together. As we read and understand the indictment, it plainly charges that the defendant, as county judge of Travis county, in his official capacity, and not merely as an individual, demanded fees not allowed by law. Nor does it charge an act outside the performance of official duty, for the law makes it the duty of a county judge to present his certified account to the commissioners' court for the fees allowed him by law in criminal cases. Code Crim. Proc. art. 1076. In presenting the account in question he was performing an official act. — an act which the law required him to perform in the discharge of his official duty as county judge. We held, therefore, that the third, fourth, and fifth exceptions to the indictment are not maintainable.

The second exception presents the question, was the presentation of the account by the defendant to the commissioners' court a demand for the fees therein charged, within the meaning of the word "demand," as used in article 240 of the Penal Code? We must answer this question in the affirmative. The legal signification of the word "demand," as used in practice, is "a requisition or request to do a particular thing specified, under a claim of right on the part of the person requesting." Bouv. Law Dict. "Demand." In this instance the defendant requested the commissioners' court to approve his account or claim against the county, claiming all the items therein charged as correct and legal, and in so doing he demanded, in the manner prescribed by law in such cases, the fees which he claimed to be due him by the county. There was no other mode in which he could legally demand said fees. Code Crim. Proc. art. 1076. Said exception also presents the further question, were the items of fees specified in the indictment fees not allowed by law? We must answer this question in the affirmative. A county judge is entitled to demand and receive from the county the the sum of three dollars for each criminal action tried and finally disposed of before him. Id. art. 1075. He is not entitled to said fee in a case that is merely dismissed. A dismissal of a case is not a trial of it, within the meaning of the law. A dismissal of a case is to send it out of court without a trial upon any of the issues involved in it. It is a final disposition of that particular case, but not a trial of it. A final disposition of a case does not of itself entitle the county judge to the fee allowed by article 1075, supra. To entitle him to the fee, the case must have been tried and finally disposed of before him. He must both try and finally dispose of it. Such is the plain language of the statute. A trial is an examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue. Bouv. Law Dict. "Trial." We are of the opinion that the indictment charges an offense against the laws of the state; that it charges fully and sufficiently the offense of demanding fees not allowed by law, denounced by article 240 of the Penal Code; and that the exceptions to the indictment were rightly overruled.

For the purpose of tending to show a knowledge on the part of defendant that the fees demanded by him were not lawful, the indictment put in evidence by the state over defendant's objection was, we think, admissible testimony. It was offered for no other purpose, and the court fully instructed the jury in its charge that it must not be considered for any other purpose.

There is a bill of exception in the record calling in question the correctness of the ruling of the court in admitting in evidence the account for fees which was presented to the commissioners' court. There is also in the record a bill of...