Commonwealth v. Cony

Tne receiving a negotiable promissory note by an officer, for fees not due, will not support an indictment for extortion.

The indictment charges that the defendant, being a deputy sheriff of this county, with force and arms, by color of his office, did wilfully and corruptly demand and receive of one Joseph Clif ford, for the service of a certain execution against the said Clifford, and wherein one Theophilus Hamblin was the creditor, a greater fee for the service of the said execution than by law was provided, viz., 9 dollars and 17 cents, when in fact there was due to him no more than 1 dollar and 2 cents, —against the form of the statute, &c. Upon not guilty pleaded, the jury found the defendant guilty. The verdict was taken subject to the opinion of the Court upon the report of Judge Sewall, before whom the cause was tried, respecting certain matters of law arising therein. The principal question arising in the cause was, whether a negotiable promissory note given by the judgment debtor to the officer for his fees, payment of which was not proved, would support this indictment, which charged him with extortiously receiving money. It was contended by the defendant’s counsel that, the note being a void promise, as made without any consideration, or for an illegal one, it was not a payment of money so as to support a charge for extortion. It was attempted also to show some variance between the sums charged by the indictment to have been received, and the sum which appeared, by the report of the judge, to have been actually secured by the promissory note ; and it was contended that by such variance the defendant might be exposed to another indictment for the same offence, to which this conviction would not be pleadable in bar. But this objection was not much relied on.