Schoonmaker v. State

35 S.W. 969, 37 Tex. Crim. 424, 1896 Tex. Crim. App. LEXIS 252

• Court: Court of Criminal Appeals of Texas
• Decided: May 20, 1896
• Docket: No. 973.
• Status: Published

Opinion

DAVIDSON, Judge.

Appellant was convicted, under Penal Code, Art. 240 (New Code, Art. 256), of receiving, as an officer, illegal fees or money, to which he was not entitled, from Frankie Hamilton. The recognizance recites that the appellant stands charged with and convicted of “extortion.” “Extortion” is not an offense in this State eo nomine. Article 240 reads as follows: “If any officer authorized by law to demand or receive fees of office, or any person employed by such officer, shall willfully demand or receive higher fees than are allowed by law, or shall willfully demand or receive fees not allowed by law, he shall be punished by fine not less than twenty-five nor more than one hundred dollars for each offense.” It is well settled in this State with reference to reciting the offense in the recognizance on appeal to this court that, if the offense is not one eo nomine, the essential ingredients of that offense must be stated in the recognizance. This has not been done in this case, “extortion” not being an offense eo nomine. The recognizance fails not only to recite the offense set out in the indictment, but fails to recite any offense, wherefore it is fatally defective. See, Baizey v. State (Tex. Crim. App.) 30 S. W. Rep., 358; Loven v. State, Id.; Pace v. State (decided at Tyler Term, 1895), 32 S. W. Rep., 697. For other authorities, see, Willson’s Crim. Stat., §§ 1794, 2650. The appeal is therefore dismissed.

Dismissed.