This case was decided on the authority of Murphy Ingram v. State, Ala.App., 3 So. 2d 426, and must be reviewed as though that opinion was rendered in this case.
Count 29 charges the defendant "knowingly took from Johnnie Watson *Page 146 * * * four dollars * * * as his fee for making an arrest, which service was not actually performed by him, or which was a greater fee than was allowed by law for the said services, or was a fee other than allowed by law for said services rendered by him."
In the first place, all these alternatives refer to the $4 taken from Johnnie Watson. The first alternative charges that defendant did not actually perform the service for which this sum was taken; the second, that it was a greater fee than allowed by law for such arrest.
The third, that this $4 was a fee other than allowed by law for said services rendered. Said services can only refer to the arrest for which the fee was taken. That $4 for making an arrest, one arrest, is greater than allowed by law is true as matter of law; therefore, a fee other than allowed by law.
Construing the statute, Code of 1923, § 4023, Code 1940, Tit. 14, § 160, the Court of Appeals says:
"It does not prohibit the taking of fees before it was due to him, or a fee other than allowed by law for said services rendered by him."
As applied to Count 29 of this indictment, this holding is erroneous. The statute does penalize taking a fee before the service is actually performed. That is what this indictment charges in one alternative. Granting the officer may take a fee less in amount than the law allows, this is not taking a fee other than allowed by law, but one within the law.
Certiorari granted.
All Justices concur, KNIGHT, J., not sitting.