Brackenridge v. State

11 S.W. 630, 27 Tex. Ct. App. 513, 1889 Tex. Crim. App. LEXIS 81

• Court: Court of Appeals of Texas
• Decided: May 8, 1889
• Docket: No. 6299
• Status: Published

Opinion

Willson, Judge.

This conviction is under article 240 of the Penal Code, which reads: “If any officer authorized by law to demand or receive fees of office, or any person employed by such officer, shall wilfully demand or receive higher fees than are allowed by law, or shall wilfully demand or receive fees not allowed bylaw, he shall be punished by fine not less than twenty-five nor more than one hundred dollars for each offense.”

The charging part of the indictment is as follows: “That J. M. Brackenridge, in said county and State, on or about the eighth day of ¡November in the year of our Lord, eighteen hundred and eighty-eight, was then and there the duly qualified and acting county judge of said Travis county, Texas, and as such officer was authorized by law to demand and receive fees of said office, and he did then and there as such officer unlawfully, extorsively and wilfully demand from said. Travis county fees not allowed by law; that is, he did then and there as such officer unlawfully and wilfully make out an account in writing against said Travis county, and certify that the same was correct, and present the same to the commissioners court, of said Travis county, at a term of said commissioners court, and did then and there wilfully and unlawfully demand that said commissioners court approve said account against said Travis county for the full amount thereof, and order a draft to be issued upon the county treasurer of said Travis county in his, said Bracken ridge’s, favor for the full amount of said account, when there was embraced in and a part of said account the sum of eighteen dollars which was made up out of a fee of three dollars charged in said account in each of six criminal cases charged for in said account as criminal cases tried and finally disposed of before him, said Brackenridge, as county judge as aforesaid, in the county court of Travis county, Texas, and the said fee of three dollars in each of said six cases, aggregating eighteen dollars, was not allowed by law, because said cases were not in fact tried and finally disposed of before said Brackenridge as county judge as aforesaid, but were criminal cases which were dismissed in said county court without any trial whatever; that the said cases which said fees were charged for and demanded were the following named, numbered and styled cases in the county court of said Travis county, to wit: No. 3383, The State of Texas v. Abe Roy; No. 3499, The State of Texas v. Jim Smith; No. 3500, The State of Texas v. Joe Brown; No. 3502, The State of Texas v. B. D. Silver; No. 3507, The State of Texas v. Thomas Williams; No. 3521, The State of Texas v. W. A. Kitchens; against the peace and dignity of the State.”

Exceptions to the indictment were presented and urged by the defendant, and were overruled by the court; and this ruling of the court is insisted upon as error. The exceptions are as follows: “1. The indictment charges no criminal offense against the laws of the State of Texas. 2. The facts alleged in the indictment do not show a demand for fees not allowed by law. 8. The indictment only charges an application by defendant as a man for the approval of the account indicated. 4. The indictment fails to charge that the act indicted was done and performed in his (defendant’s) - official capacity. 5. The indictment in whole and in part charges acts outside the performance of official duty.”

We will consider the three last exceptions first and together. As we read and understand the indictment, it plainly charges that the defendant, as county judge of Travis county, in Ms official capacity, and not merely as an individual, demanded fees not allowed by law. Hor does it charge an act outside the performance of official duty, for the law makes it the duty of a county judge to present Ms certified account to the commissioners court for the fees allowed Mm by law in criminal cases. (Code Criminal Procedure, article 1076.) In presenting the account in question he was performing an official act, an act which the law required him to perform in the discharge of his official duty as county judge. We hold, therefore, that the third, fourth and fifth exceptions to the indictment are not maintainable.

The second exception presents the question, was the presentation of the account by the defendant, to the commissioners court, a demand for the fees therein charged, within the meaning of the word “demand” as used in article 240 of the Penal Code? We must answer this question in the affirmative. The legal signification of the word “ demand,” as used in practice, is, “ a requisition or request to do a particular thing specified under a claim of right on the part of the person requesting.” (Bouvier’s Law Dictionary, “Demand.”) In this instance, the defendant requested the commissioners court to approve his account or claim against the county, claiming all the items therein charged as correct and legal, and in so doing he demanded, in the manner prescribed by law in such cases, the fees which he claimed to be due him by the county. There was no other mode in which he could legally demand said fees. (Code Criminal Procedure, article 107G.) Said exception also presents the further question, were the items of fees specified in the indictment, fees not allowed by law? We must answer this question in the affirmative. A county judge is entitled to demand and receive from the county the sum of three dollars for each criminal action tried and finally disposed of before him. (Code Criminal Procedure, "article 1075.) He is not entitled to said fee in a case which is merely dismissed. A dismissal of a case is not a trial of it, within the meaning of the law. A dismissal of a case is to send it out of court without a trial upon any of the issues involved in it. It is a final disposition of that particular case, but not a trial of it. A final disposition of a case does not of itself entitle the county judge to the fee allowed by article 1075, supra. To entitle him to the fee the case must have been tried and finally disposed of before Mm. He must both try and finally dispose of it. Such is the plain language of the statute. A trial is an examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue. (Bouvier’s Law Dictionary, “Trial.”)

We are of the opinion that the indictment charges an offense against the laws of the State; that it charges fully and sufficiently the offense of demanding fees not allowed by law, denounced by article 240 of the Penal Code; and that the exceptions to the indictment "were rightly overruled.

For the purpose of tending to show a knowledge on the part of defendant that the fees demanded by him were not lawful, the indictment put in evidence by the State over defendant’s objection was, we think, admissible testimony. It was offered for no other purpose, and the court fully instructed the jury in its charge that it must not be considered for any other purpose. There is a bill of exception in the record calling in question the correctness of the ruling of the court in admitting in evidence the account for fees which was presented to the commissioners court. There is also in the record a bill of exceptions to the charge of the court. Counsel for defendant have not in their brief presented the questions raised by said bills, but we have nevertheless considered the same, and find no error in the ruling or charge. We think the charge of the court present* the law of the case succinctly, clearly and correctly.

• By the verdict of the jury the defendant was found guilty as charged in the indictment, and his punishment assessed at a fine of twenty-five dollars. Judgment was accordingly entered upon said verdict in the usual form, and upon the written suggestion of the district attorney the court rendered and embodied in the judgment entry an order as follows: “And it appearing to the court that the defendant, J. M. Brackenridge, was duly elected county judge of Travis county, Texas, at the general election in November, 1886, and thereafter within the time prescribed by law he duly qualified as such county judge, and continued in the exercise of said office until his re-election thereto at the general election on the first Tuesday, being the sixth day of November, 1888; that while in the discharge of his official duties as county judge aforesaid, on or about the fifteenth day of November, 1888, being after the date of his re-election, and before he qualified for the present term of office* the defendant, J. M. Brackenridge, as county judge aforesaid, did wilfully demand fees of said office not allowed by law, as appears from the verdict of the jury and the judgment of the court aforesaid, and that on or about the twenty-first day of November, A. B., 1888, the said J. M. Bracken-ridge again duly and legally qualified as county judge of said Travis county, and is now the qualified and acting county judge of said Travis county:—Therefore, it appearing to the court that the defendant, J. M. Brackenridge, as county judge as aforesaid, has been convicted by a petit jury for a misdemeanor involving official misconduct, and that said conviction works an immediate removal of said defendant from said office of county judge, it is considered, ordered and adjudged by the the court that the defendant, J. M. Brackenridge, be and he is hereby removed from the office of county judge of Travis county, Texas, and the said office is declared to be vacant.”

. It is insisted by counsel for the defendant that the judgment removing from office is unauthorized, because the acts of which defendant was convicted were committed before he had qualified as count;'- judge, as his own successor in that office. It is provided by statute that “All convictions by a petit jury of any county officers for any felony, or for any misdemeanor involving official misconduct, shall work an immediate removal from office of the officer so convicted, and such judgment of conviction shall, in every instance, embody within it an order removing such officer.” (Rev. Stat., art. 3388.) It is further expressly declared, however, that “Ho officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office.” (Rev. Stat., art. 3415.) There can be no question, in view of the last quoted provision of the statute and of the law as settled by the decisions of the courts, that if the acts of which the defendant was convicted had been committed prior to his eledtion to the office, such acts would afford no legal ground for removing him from the office. (Gordon v. The State, 43 Texas, 330; Trigg v. The State, 49 Texas, 645; Flatan v. The State, 56 Texas, 93.) His election would be a condonation of any crime or misconduct committed prior thereto; at a time when he was not holding the office to which he was elected.

But in this case, at the time the defendant committed the act of which he has been convicted, he was the duly elected and qualified county judge of Travis county. He was such officer de facto and de jure. By virtue of his election and qualification in 1886 he was inducted into tbe office, and had the legal right to exercise, and was exercising its functions, until his successor should qualify. (Rev. Stat., art. 1133.) By the election of 1888 he became his own successor in the office, which election occurred prior to the commission of the acts of which he has been convicted. It can not be said, therefore, that said acts were condoned by that election. That he had not, at the time of the commission of said acts, been re-inducted into the office by virtue of his re-election does not, we think, affect the question of his removal, because he was in fact and by right the duly qualified county judge of Travis county at "the time he committed the acts, and although said acts were committed by him as such officer under and by virtue of his election and qualification in 1886, they were not condoned by his re-election in 1888, occurring prior to the commission of said acts.

None of the decisions cited by counsel for the defendant in support of their position upon this question appear to us to be applicable. None of them present the case of an officer who succeeded himself and was already in possession of and exercising the functions of the office at the time he committed the acts” for which he was removed. They are cases where the parties, though elected to an office, had never been inducted into it—had not qualified, or entered upon the discharge of its fund ions; and they do not conflict with the view which we entertain of the question as presented in this case, which is that the acts committed by defendant, having been committed subsequent to his re-election, were nob condoned, and constituted ground for his removal from the office, although at the time of their commission he had not qualified under his re-election.

But it is contended by counsel for defendant that the acts for which the defendant has been convicted do not involve official misconduct, and do not, therefore, constitute ground for removal from office. By official misconduct is meant any unlawful behavior in relation to the duties of his office, wilful in its character, of any officer intrusted in any manner with the administration of justice, or the execution of the laws, etc. (Rev. Stat., art. 3393.) We do not hesitate to say that an officer who wilfully demands fees not allowed by law is guilty of official misconduct wilful in its character, and that a conviction of that offense is a conviction involving official misconduct within the meaning of the statute (Rev. Stat., arts. 3388, 3393), ■and not only warrants but demands his removal from the office.

It is made to appear, in a motion for a new trial supported by affidavits, that one Doss, who served on the jury in the trial of the cause, was not a qualified juror in Travis county; that he was not a householder in said county, nor a freeholder in the State, and that he was not a resident of said Travis county; that said juror, before being impaneled, had been interrogated touching his qualifications, and had answered under oath, to the court, that he resided in said Travis county and was a qualified voter in said county; that said Doss was a stranger to defendant, and that neither the defendant nor his counsel knew, or had reason to believe, that said Doss was not a qualified juror, and regarded his statement under oath that he was qualified as true. It is further made to appear that said Doss, before being impaneled upon said jury, made statements which indicated that he was prejudiced against the defendant, of which statements the defendant and his counsel were ignorant when he was accepted as a juror. The district attorney filed a written denial of the truth of the above recited facts, but introduced no evidence in behalf of the State upon the issue thus formed; at least there is no evidence in the record before us controverting the defendant’s testimony in support of Said ground of his motion for a new trial. We must therefore hold that the facts set forth in said motion in relation to said ground, and which we have substantially recited, were established by the affidavits accompanying said motion.

Opinion delivered May 8, 1889.

Said facts being true, the defendant has been tried and convicted by a person not qualified to serve as a juror in the case, and whom the evidence tends strongly to show was prejudiced against him, and this without any negligence or fault on the part of either the defendant or his counsel. We are of the opinion that because of this ground the defendant was entitled to a new trial, and. that the court erred in not granting his motion. Boren v. The State, 23 Texas Ct. App., 28; Armendares v. The State, 10 Texas Ct. App., 44; Hanks v. The State, 21 Texas Ct. App., 526; Henrie v. The State, 41 Texas, 573; Code Crim Proc., art. 631.) We are not prepared to say that by reason of the disqualified juror the defendant suffered no injury to his rights, even were we at liberty to consider that question.

There are other questions made in the record which we do not discuss or determine, because they are unimportant in view of the fact that they are of a character which may not arise on another trial.

Because the court erred in remising the defendant a new trial because of the disqualification of the juror Doss, and upon such ground alone, the judgment is reversed and the cause is-remanded.

Reversed and remanded.

Judge Hurt is not prepared to assent to or dissent from the-conclusion of a majority of the court as to the demand, but concurs in the other views expressed in the opinion.

[Note.—The words and figures in italics denote words and figures which, were cross-lined out in the account as approved and put in evidence.— Rep.]