after stating the case as above: The Judge who tried the case below evidently acted upon the idea that the indictment was sufficient as a charge of extortion. This offence 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. Cr. Law?, §573; 4 Bl. Com., 141; People v. Whaley, 6 Cowen (N. Y.), 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 wilfully and corruptly, and not through any mistake of law or fact. 2 Bishop’s Cr. L., §§ 396, 399 and 400; Roscoe’s Cr. Ev., marg. p. 833, and note; Commissioners v. Shed, 2 Mass., 227; Cutler v. State, 36 N. J. (7 Vroom), 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 *927reason, lead 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 wilful '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 Bishop’s Cr. 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 one of the opinions. In the case of Coates v. Wallace, 17 Sergeant & 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 jury, if the indictment cannot be sustained as a charge of some other offence than extortion at common law, or even if it is sufficient as a charge of the offence created by the last clause of section 1090 of The Code.
It seems essential, too, that it should be charged in the indictment, as well as proven on the trial, that the money was taken “under color of office” All of the definitions and all of the approved precedents of indictments for extortion at common law contain the words “under color of his office.” 2 Wharton’s Cr. Law, §1576; 2 Wharton’s Precedents of Indictments, Form. 902; State v. Bisaner, 97 N. C., 503: Archbold’s Cr. PL, 438; Bishop’s Cr. Procedure, §§ 320, 321; State v. Cansler, 75 N. C., 442; 2 Bishop Cr. Law, 393; People v. Whaley, supra; Rex v. Boines, 6 Mod., 192; Runnells v. Fletcher, 15 Mass., 525.
*928But it was suggested by the Attorney General that the indictment could be sustained under section 1090 of The Code, which creates two distinct offences, one of which is a misdemeanor, punishable at the discretion of the Court (by fine or imprisonment in the common jail not exceeding two years, or by both), while a person convicted of the other, the corrupt violation of his oath of office, must also be removed from office. If the indictment is sufficient under the last clause of said section, then it was proper to charge, and it was necessary to prove, the corrupt intent, and it would follow, as in a trial for extortion at common law, tha't it was error to refuse to allow the jury to pass upon the motive of the defendant. But it is not necessary to discuss the question whether the testimony would have warranted a conviction of the misdemeanor created by the first clause of said section, because it is of the essence of either offence described in said section that it should 'be charged and proved that the accused officer was required by law to take an oath of office before entering upon the discharge of his duties. If the indictment had been drawn so as to properly charge the misdemeanor under the first clause, some grave questions wmuld have arisen as to the sufficiency of the evidence to justify a conviction, and it would have been also necessary to modify the judgment. We have not deemed it proper to follow the argument of counsel, and pass upon all of the various questions presented. It is not necessary that we should determine whether the receipt of money voluntarily tendered by a person other than Spry, who was amenable under the indictment pending before the defendant’s Court, and supposed to be to some extent under the power of the latter, would constitute the offence of extortion at common law, if properly charged. We omit to pass' also upon the question whether Smith, the employer, could lawfully tender a submission for his servant at all, or, if at all, before Spry had been arrested. It was suggested, also, that the *929indictment might be sustained as a charge of bribery at common law. Bribery is the voluntary giving or receiving of anything of value in corrupt payment of an official act done or to be done 2 Bishop Cr. Law, § 85 and note. The distinction between bribery and extortion seems to be that the former offence consists in offering a present or receiving one, the latter in demanding a fee or present by color of office. So, in indictments for bribery, too, it seems that it must be charged that the money was given or received corruptly, and the proof must correspond with the charge. Archbold’s Cr. Pleadings, 437, §6; Bish. Cr. Pr., §99; Roscoe’s Cr. Ev., 343, et seq. We conclude, therefore, that the exception of the defendant to the refusal of his Honor to submit the question of intent to the jury should be sustained.
There is error, for which a new trial will be granted.