Opinion
(October Term, 1796.)
In an indictment for extortion in taking more than the legal fee, it is no excuse that the defendant did the act through mistake, or under improper advice. An indictment for extortion in the county court, stating the day on which the offense was committed in figures, and also omitting the word extorsively in charging the taking the unlawful fee, may be supported under the act of 1784, Rev., ch. 210. It is not necessary to state what the lawful fee is, in an indictment of this kind.
INDICTMENT for extortion, on taking 8 shillings for a guardian bond; and not guilty pleaded.
On the trial the defendant's counsel insisted that according to the rate of fees in the fee bill published by the Secretary, the clerk is entitled for every order foreign to a cause in court to 2 shillings; and for every guardian bond 6 shillings, although in the act from whence the extract is taken he is entitled for every guardian bond, including all services thereon, to 6 shillings only. The latter words were omitted by the Secretary out of the rate of fees published by him, and as the clerk might have been misled by the rates published by public authority it cannot be said he took the excess corruptly. Also, it was proven in this case he was advised by an old practitioner that he might demand 8 (407) shillings, before which advice he only took 6. This proves him to have been mistaken in the fee allowed by law, and it shows the innocence of the mistake; and if the jury cannot say from the evidence they hear that he did it extorsively, or with a corrupt or oppressive motive, they cannot pronounce him guilty.
As to the rate of fees published by authority, and collected from different acts of the Legislature, that was for the benefit of the people at large, that any one might know at once, by inspecting the rates, when an officer demands more than was his legal fee. It was not intended to change the law; every officer is bound to know what the law is upon the subject of fees to be taken by himself. He cannot excuse himself from taking more than the legal fee by saying he was misled by the rates published, or by the advice of an attorney, nor by any other excuse he can make. If such or the like excuses were admitted, it would hardly ever be possible to convict an officer of extortion; he might always contrive to ground his conduct upon misapprehension or improper advice.
The jury found him guilty. Afterwards his counsel moved in arrest of judgment, and assigned several reasons, the principal of which were that the day on which the offense is said to have been committed is stated in figures; secondly, that the receipt of the 8 shillings is not laid to have been committed extorsively; thirdly, that it is not stated in the indictment what was the legal fee.
This is an indictment originally found in the county court, and brought hither by appeal. It is therefore entitled to the aid of the act of 1784, ch. 31, sec. 3, which directs that in all criminal prosecutions thereafter to be had by indictment or presentment in the county courts it shall be sufficient to all intents and purposes that the bill shall contain the charge against the criminal, expressed in a plain, simple, intelligible and explicit manner; and that no bill of indictment shall be quashed or judgment arrested for or by reason of any informalities or refinements, where there appears to the county court sufficient in the face of the indictment to induce them to proceed to judgment. The first fault pointed at is certainly cured by this act — the meaning, though expressed in figures, is as well known to the Court as if it had been expressed by letters, though perhaps an indictment drawn in this Court originally might have been vitiated by stating the day in figures. As to the second exception, had the indictment been originally found in this Court, the omitting to charge it to have been taken extorsively would have been (408) fatal, the precedents all being that way; but having been drawn in the county court, we have only to consider whether enough appears upon the fact of the indictment to point decidedly and substantially at the same circumstances as is expressed by the word extorsively.
It is stated that he took 8 shillings for a certain service by color of his office, and for wicked gain sake. Now, it is known to the judges here, as being part of a public act, that 8 shillings is above the legal fee for that service. It can, therefore, appear to them in no other light than that of an extorsive taking; and we cannot say, under the act referred to, that there is not enough of substance to enable us to pronounce the offense charged to be that of extortion. As to the other exception, it is not necessary to state what is the lawful fee, even in an indictment preferred originally in this Court. If no fee was due, the indictment says, "Whereas no fee whatever was due to the said A on that account." If not so much is due, the indictment states, "Whereas no such fee was due to the said A on that account, or for that service." And this has always, in times of the greatest strictness, been held well.
But the attorney for the defendant pressing to have time to search for authorities, and this being consented to by the Solicitor-General, the case was adjourned.
Cited: S. v. Moses, 13 N.C. 464; S. v. Dickens, 26 N.C. 121; S. v. Boyett, 32 N.C. 345; S. v. McBrayer, 98 N.C. 623, 628; S. v. Williams, 106 N.C. 649; S. v. Pritchard, 107 N.C. 929, 930; S. v. Kittelle, 110 N.C. 567, 587; S. v. Downs, 116 N.C. 1066; S. v. McLean, 121 N.C. 601; S. v. R. R., 122 N.C. 1062; S. v. Simmons, 143 N.C. 616.