Kitby v. State

• Decision Date: 08 November 1894
• Citation: 57 N.J.L. 320,31 A. 213
• Parties: KITBY et al. v. STATE.
• Court: New Jersey Supreme Court

31 A. 213

57 N.J.L. 320

KITBY et al.

v. STATE.

Supreme Court of New Jersey.

Nov. 8, 1894.

(Syllabus by the Court.)

Charles E. Kitby and others were indicted for extortion, and move to quash the indictment. Motion granted.

Argued June Term, 1894, before DIXON, ABBETT, and REED, JJ.

John S. Mitchell, for the motion.

Wm. A. Logue, opposed.

REED, J. This indictment is for extortion. It sets out that Kirby Richman and Westcott constituted the board of license commissioners of Cumberland county, and, as such, were officers of this state, duly empowered to grant licenses to sell liquor, and being such officers, with such power, did by color of their said office, extortionately demand and receive from one Taylor a certain sum of money as a fee or reward for doing their office.

Extortion, technically, is an official misdemeanor. While, in its larger sense, it signifies any oppression under color of right, in its strict sense it signifies the taking of money by an officer, by color of his office, where none, or a part only, is due. 1 Hawk. P. C. p. 418; 2 Bish. Cr. Law, § 392; Revision, tit. "Crimes," p. 230, § 23. The offense consists in the oppressive misuse of the exceptional power with which the law invests the incumbent of an office. It is thus apparent that the crime of extortion is committable only by an officer. The officer need not possess a legal title to the office whose functions he executes. A person who serves as an officer, and claims to be one is estopped to deny his official appointment 2 Bish. Cr. Law, § 392. So it appears that a de facto as well as a de jure officer is punishable for extortion, as he is for any other mal feasance in office. But an official character either de facto or de jure, is essential. The indictment is drawn in the usual form, and charges that the defendants were officers, and, by color of their office, extorted. This is a material averment, proof of which is absolutely required to support a conviction. The fatal defect in this indictment is not in its form, but is to be found in the circumstance that it must be now concluded, as a matter of law, that these defendants were never the officers they are charged to have been, and therefore could not, as such, have extorted. This inexorable legal conclusion is the result of the unconstitutionality of the statute which created the offices of license commissioners in certain counties, which offices the defendants are charged with using for extortionate purposes. ...