[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 874 In habeas corpus proceedings the strongest intendments are indulged against the petitioner.
The indictment charges that the accused "did * * * unlawfully and corruptly demand and exact" etc.
The word "exact" as used in the statute is not synonymous with the word "demand." See Callaway v. State, 112 Fla. 599, 152 So. 429, where Mr. Justice ELLIS said:
"The gravamen of the felony consists in either exacting or accepting a reward or compensation other than that which is provided by law for the performance or non-performance or violation of a law or rule which is incumbent upon the officer to obey when he has no reasonable ground for believing that the reward or compensation exacted or accepted is authorized by law.
"Both offenses are defined in the Compiled General Laws of Florida under the article entitled `Bribery.' The statutes define in each case the common law offense of bribery but the offense is confined to the officer who accepts or exacts the reward and does not include the person offering or paying the reward for the performance of the duty or the omission of it. The sections denouncing the offense as a felony, *Page 879 however, introduce the element of extortion, which differentiates it from the offense of bribery and makes it more odious. The offense consists in the oppressive misuse of the exceptional power with which the law invests the incumbent of an office, is the language of Mr. Justice Reed in Kirby v. State, 57 N.J.L. 320,31 Atl. Rep. 213."
Afterwards on rehearing this opinion was adopted.
For the purpose of this disposition we may disregard the word "demand" as used in the indictment.
As we construe the language of the statute, Sec. 5351 R.G.S., 7486 C.G.L., under which the indictment in this case is drawn, it applies only in cases where reward, compensation or other remuneration other than those provided by law is received by the official charged with the violation thereof, or is made a condition precedent to the performance or non-performance of a legal duty, and a violation of the statute may either occur by the officer making the payment of unlawful compensation to him a condition precedent to his performance or non-performance of a legal duty, or by the officer demanding and receiving the unlawful compensation or by the officer accepting unlawful compensation voluntarily offered him in consideration for which he agrees to perform or execute, or not to perform or execute any law, rule or regulation that may be the legal duty of such officer or public appointee to respect, execute or to have executed. The act sought to be influenced by the bribe must be one which is incumbent upon the officer or public appointee to perform, respect or execute or to have executed.
An adjudication on this point, however, is not essential to the disposition of the question before us at this time because the indictment uses the word "exact" which is the same word used in the statute, and we are not now concerned with the question of what may be sufficient to prove *Page 880 this allegation of the indictment. We do not mean to say whether or not the allegations of the indictment are sufficient to withstand motion to quash. As to this we express no opinion, although, aside from the allegations above mentioned, the allegations that any certain legal duty rests upon the accused appear, at best, vague and uncertain.
So the motion to quash the writ is granted and the petitioner is demanded.
So the motion to quash the writ is granted and the petitioner is remanded.
ELLIS, C.J., and WHITFIELD, TERRELL, BUFORD and CHAPMAN, J.J., concur.
BROWN, J., concurs specially.