State v. Cooper

• Decision Date: 17 September 1908
• Citation: 113 S.W. 1048
• Parties: STATE v. COOPER.
• Court: Tennessee Supreme Court

113 S.W. 1048

STATE v. COOPER.

Supreme Court of Tennessee.

September 17, 1908.

Appeal from Criminal Court, Shelby County; Jas. W. Palmer, Judge.

S. H. Cooper was indicted for extortion, and from an order quashing the indictment, the State appeals. Reversed and remanded.

Chas. T. Cates, Jr., Atty. Gen., for the State. J. J. Du Bose, for appellee.

SHIELDS, J.

This is an indictment for extortion, preferred against the defendant in error, a justice of the peace of Shelby county, in the criminal court of that county. The defendant by counsel moved the court to quash the indictment, and his motion was sustained, and the indictment quashed. Thereupon the district attorney, for the state, excepted to the ruling of the court, and prayed and was granted an appeal to this court. The record fails to disclose the grounds of the motion of the defendant, and no brief has been filed in his behalf.

The charge in the indictment is that the defendant demanded and received from G. V. Janes, who had been brought before him under arrest upon a warrant charging said G. V. Janes with assault and battery, 50 cents as a fee for taking an appearance bond before said fee was due. The fee collected is the amount allowed by the statute. Shannon's Code, § 6387. No complaint is made of the amount of the fee demanded and received. The gist of the charge is that it was not then due; the bond being for the appearance of Janes before the justice of the peace on a day to which the case before him had been continued.

Extortion under common law has been defined by this court, upon the authority of Blackstone's Commentaries, to be "the taking, by color of an office, of money or other thing of value that is not due, before it is due, or more than is due." Williams v. State, 2 Sneed, 162.

It is defined by another able author upon Criminal Law in these words: "Extortion in its general sense signifies any oppression by color of right; but technically it may be defined to be the taking of money by an officer by reason of his office, either where none is due or where none is yet due." 2 Wharton's Criminal Law (9th Ed.) § 1574. All other authorities we have been able to examine are to the same effect. 12 Encyclopedia of Law (2d Ed.) 576, 577; Levar v. State, 103 Ga. 42, 29 S. E. 467.

The provisions in the Code of Tennessee upon the subject of extortion are as follows:

"No officer is allowed to demand or receive fees or other compensation for any service further than is expressly provided by law.

"If any officer demands or receives any other or higher fees than are prescribed by law he is liable to the party aggrieved in the penalty of fifty dollars to be recovered before any justice of the peace, and is also guilty of a misdemeanor in office." Shannon's Code, §§ 6352, 6353.

"Extortion by Officer. — For any person knowingly to demand or receive of another for performing any service or official duty for which a fee or compensation is established by law, any greater fee or compensation than is legally allowed or provided." Shannon's Code, § 6714.

It may be said that these provisions do not make the collection of a lawful fee before it is due extortion. We think the first section quoted does cover such a case. By it an officer is prohibited from demanding or receiving fees for any service further than is expressly provided by law. This not only refers to the amount of the fee, but to the time when it is due by law. But, if this was not so, the indictment would be good under the common law. There is no doubt but that under it the collection of a fee before it becomes due and payable is extortion. There is...