State v. Pritchard
| Decision Date | 20 October 1890 |
| Parties | STATE v. PRITCHARD. |
| Court | North Carolina Supreme Court |
This was a criminal action tried to the spring term, 1890, of the superior court of Bertie county, before ARMFIELD, Judge. The defendant pleaded not guilty to the indictment, which was as follows: "The jurors for the state, upon their oath present that on the 28th day of October, A. D. 1889, one A J. Pritchard, late of the county of Bertie, being then a justice of the peace in and for the aforesaid county, duly and legally appointed and authorized to discharge the duties of that office, did, on the said 28th day of October, 1889 at and in said county, issue in the name of the state of North Carolina, and directed to any lawful officer of said county a warrant for the arrest of the person of one Virginius Spry which said warrant was made returnable before him, the said A. J. Pritchard, as a justice of the peace of the aforesaid county, at his office in the town of Windsor, upon a day to the jurors unknown; and the said A. J. Pritchard, not regarding the duties of his said office of justice of the peace, but perverting the trust reposed in him, and contriving and intending the citizens of this state, for the private gain of him, the said A. J. Pritchard, to oppress and impoverish, and the due execution of justice as much as in him lay to hinder, obstruct, and destroy, did, on the aforesaid day, at and in the aforesaid county, willfully, corruptly, and extorsively take, receive, and accept from one E. E. Smith, for and on behalf of the defendant in the said warrant of arrest, to-wit, the said Virginius Spry, a certain sum of money, to-wit, one dollar, as an inducement in consideration for the dismissing of the aforesaid warrant of arrest against said Virginius Spry; and in consideration of said sum of money so paid and received as aforesaid, the said A. J. Pritchard, justice of the peace as aforesaid, did willfully and corruptly neglect and omit to bring to trial the aforesaid Virginius Spry, as of right and according to his duty as a justice of the peace as aforesaid he ought to have done, and did not try the said Virginius Spry on the said warrant of arrest, but suppressed the same against the duties of his said office, to the great hindrance of justice and against the form of the statute in such case made and provided, and against the peace and dignity of the state." The evidence showed that Spry was a mate upon the boat of E. E. Smith, and that the warrant of arrest was issued against him for an assault and battery upon one Mike Heffron. The constable did not at once find him, and he was not arrested. Smith, hearing that the warrant was out, went to the defendant and offered to settle the matter, as Spry's arrest would entail great expense by stopping the boat. The defendant objected that he had no right to settle it that way, but being importuned went with Smith to the office of W. L. Williams, an attorney, to take his advice about the matter. Williams told him that if he had looked into the case, and was satisfied that it was a trivial affair, he had a right to fine Spry and stop the case. After repeated refusals defendant finally disposed of the case by imposing a fine of 50 cents upon Spry, and receiving $1 for the constable's fee. He paid the fine to the sheriff, and the $1 to the constable, it being his legal fee. Smith offered to pay the justice's costs, but the latter refused to receive them. Defendant testified that he considered that he had already heard all the evidence from Heffron, the prosecuting witness, that he would have heard if both he and Spry had been before him. This was substantially all the evidence. The court charged the jury, in effect, that if the defendant took the money for himself or any one else, knowing at the time that the warrant had not been executed, and knowing the other circumstances of the case, then they should find him guilty; and that he could not justify his acts on the ground that he took advice of a lawyer or anybody else; to which defendant excepted, and requested charges to the effect that he could not be convicted except upon proof that he acted from corrupt motives, and that his refusal to take a fee for himself, and the fact that he sought the advice of counsel, were circumstances going to show that he acted in good faith. He was found guilty, and adjudged to be removed from office, to pay a fine of $25, and be imprisoned in the county jail for 10 days, from which judgment he appeals.
An indictment for extortion which fails to charge that the money was taken "under color of office" is insufficient.
The Attorney General, for the State.
Winston & Williams, for defendant.
The judge who tried the cause below evidently acted upon the idea that the indictment was sufficient as a charge of extortion. This offense is defined to be the unlawful taking by an officer (de facto or de jure) by color of his office from any person any money or thing of value that is not due, or more than is due, or before it is due. 1 Bish. Crim. Law, § 573; 4 Bl. Comm. 141; People v. Whaley, 6 Cow. 661; State v. McEntyre, 3 Ired. 171; State v Cansler, 75 N.C. 442. In order to prove this charge it is necessary to show that the fees were demanded willfully and corruptly, and not through any mistake of law or fact. 2 Bish. Crim. Law, §§ 396, 399, 400; Rosc. Crim. Ev. marg. p. 833, and note; Com. v. Shed, 1 Mass. 227; Cutter v. State, 36 N. J. Law, 125; People v. Whaley, supra; State v. Cansler, supra. While the rulings of the courts have been somewhat conflicting upon this point, the weight of authority as well as reason leads us to the conclusion that all officers, and especially those who are acting judicially, have a right to demand that a jury shall pass upon their intent in taking the fees, and find that the act was willful and corrupt before they can be lawfully convicted of this serious charge. The words "under color of his office" imply that the officer has taken advantage of his position and corruptly used the relation that he sustains to the government to drive others to submit to his exactions. 1 Bish. Crim. Law, § 587. We find, upon examination, that in the two cases cited by the attorney general from the Tennessee Reports (State v. Critchett, 1 Lea, 271, and State v. Merritt, 5 Sneed, 67) the court was considering indictments framed under a section of the Code of that state, the substance of which is set out in the opinion in one of them. In the case of Coates v. Wallace, 17 Serg. & R. 75, the supreme court of Pennsylvania, too, construed a statute giving a penalty for taking fees not due or more than was due. We think that the court erred in refusing to submit the question of intent to the...
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