The offense is extortion as defined in Article 363, Vernon's Tex.Crim. Stat., Vol. 2, and in Art. 365, Penal Code, 1925. The indictment appears in accord with Wilson's Crim. Forms, No. 174.
The specific averment is in substance that the appellant, a justice of the peace, authorized to demand and receive fees of office, did unlawfully, wilfully and knowingly extort, collect and receive from J. C. Andis the sum of seven dollars, not authorized by law, by falsely representing to the said Andis that he was charged with an offense, namely, parking in a public road without lights, when in truth there was no such offense and there were, in fact, no charges against him. The evidence showing the transaction is not in dispute. Andis, in company with a young lady, was riding upon the public road in an automobile and drove to a point near but off the public road. They stopped the car and turned out the lights. Appellant accosted Andis and told him that he was under arrest; that he had committed an offense; that his fine and that of the lady who was with him would each be $14.40. Andis protested that he had no money but promised to appear on the following day, which he did. A constable who was with the appellant, at the time of the arrest gave the assurance that he believed that Andis would appear. Andis gave the appellant a check for $28.80 and promised to take up the check by paying cash as soon as possible. He did pay seven dollars at the time of the delivery of the check. Appellant told him in substance that he was charged with an offense and that the case would be tried unless payment was made. No report of the collection of the fees was made by the appellant, nor was any complaint filed against Andis; nor any cases docketed against him; nor was the act with which he was charged an offense against any of the laws of the state.
At the time the original opinion was written, our attention was not drawn to the fact that the statement of facts was not authenticated by the trial judge and was not entitled to consideration. The case as originally written was disposed of upon the assumption that the statement of facts was in a condition for consideration. In the absence of a statement of facts *Page 363 which can be considered, we are unable to determine the merits of the bills of exception complaining of the rejection of proffered testimony by the appellant.
Appellant seems to have urged as a defense that he intended to enter the charge against Andis, but refrained from doing so until Andis had paid in cash the full amount of the check; that this was the custom pursued by him with the knowledge of the prosecuting officer. This, however, seems to have been controverted by the prosecuting officer.
Appellant seems to have urged as a defense that he intended to enter the charge against Andis, but refrained from doing so until Andis had paid in cash the full amount of the check; that this was the custom pursued by him with the knowledge of the prosecuting officer. This, however, seems to have been controverted by the prosecuting officer.
Appellant also sought to introduce evidence to the effect that there had been complaints brought to his attention of people parking along the public road and drinking intoxicants and there creating annoyance, but he makes no contention in the present case that the parties arrested were doing any unlawful thing or had any whiskey or other intoxicants in their possession.
We fail to see, in either of the matters mentioned, how the proffered testimony would have availed him. Moreover, it seems that he had been informed it was not within his province to make an arrest or to collect fines from persons because they had merely parked their cars and turned out their lights upon the public road.
This much has been stated in view of the fact that the merits of the case were discussed upon the original hearing upon the idea that there was a statement of facts. Had we discovered or had our attention been called to the true condition of the record, we would have refrained from discussing the bills of exception on the original hearing for the reason herein above stated, that in the absence of the statement of facts, no question was presented which we would have been able to intelligently review. We will add that our re-examination of them leads us to the conclusion that if the record was complete, the matters of procedure, that is, the rulings of the court upon the admission and rejection of evidence, present no error.
The same may be said in a measure of the bill complaining of the misconduct of the jury. The evidence heard upon that *Page 364 issue is before the court, but in the absence of knowledge of the evidence which was given upon the trial of the case, it is not practicable to determine whether the matters complained of were, in fact, a transgression of the law nor whether they were material.
Some of the evidence relates to telephone conversations by jurors after they were impaneled. These seem to have been under circumstances which were not illegal. They were authorized by the court and had no reference to the case.
During the deliberation, one of the jurors, in the interest of the appellant, referred to the fact that other officers had been guilty of conduct similar to that with which the appellant was charged and that there was in his mind an objection to the conviction of the appellant; that others equally culpable had not been convicted. This is what the record shows, if we understand it. In reply to this, an argument took place between Craft, who made the suggestion, and one of the other jurors. During this discussion mention was made of what they had heard about the "county cases." We gather from other parts of the evidence that some one was killed. Just what the details with reference to these matters were we are not advised; nor can we say from the testimony that it did not relate to matters that were adduced upon the trial.
Appellant seems to have defended upon the ground that his conduct was not different from that of other officers in the vicinity.
The motion for rehearing is overruled.
Overruled.