UNITED STATES V. HARNED.
(Dtstrtet Oourt, D. Washington, N. D. June 25,1890.)
Ii S.\I\rB+-DniEOTION OF VERDIOT.' uPlln trial of a criminal case, the prosecution fails to introduce any evidence to sbow one of the elements of the crime charged, a motion to instruot the .jully to:acquit the defendantwlli be granted.:
In 'trial. upon an indiotment founded upon seotion 5481, Rev. St., proof that money in excess of legal fees was received bv an officer of the United States, and that inl;'eceiving the money he acted in an official capacity and corruptly, is not sulDcient·to warrant a conviotion, without evidence tending to' prove that the ex. cess was"exacted by the defendant, and not paid voluntarily.
was indicted for, the (lrime of extortion. under section Q481, Rev.'$t·· which is as "Every ·officer of the States whois guilty, of extortion under color of hi.s office shall be punished by a fine of than $500, or by imprisonment for not more,than one year, except t,hose,officers or agents of the United States ot,Jienyise differently provided subsequent sections of thjschapter." Upon: tpe all the evidence for the prqsecution had ,been introduced, attorney moved the court to the jury 'to render a verdict for h1ll1. 'l, . ,:' . . , PaI:r.i.ckH. Winswn,U, S. Atty., andP. a. SuUivan, Asst. ·U. S. Atty. A. Rl Gllema9i, for defendant.
HANFORD, J., (ornlly.) I will to grant tbis motion. This indictment is founded upon section 5481 of the Revised· Statutes. The to the bar to ansWer the charges in this indictment, else·. He cannot be convicted here ongelleral principles, 9f, fqr.a.qYsort of wrong-doing except the crime of extortion. As has beensQ,id in the argument, the statute does not attempt to "extortion;".and it does not attempt to define the crime by any other word . thlil:i.theword "extortion." It simply states thatany officer of the United States guilty of extortion shall be punished in a certain manner. His in.curnbellt on the prosecution ina criminal case to prove every material fact by competent evidence, sufficient to convince the jury beyond all reasonable doubt·. Every single/element of .the crime must be shown by affirmativ.e prdof. i Now. there is evidence in this case sufficient to go to thejury as to almost everything necessary to constitute this offense. There is evidence here that the defendant was an officer of the United States. There is evidence here that he received money from Capt. Sprague in excess of the legal fees. There is evidence that he knew that those fees were illegal, (but that would not have been necessary to prove, because under no circumstances could he defend his action on the ground of ignorance as to what the fees were,) but there is evidence to go to the jury that he had full and ample knowledp;e of all the facts which would be for him to have in order to commit the offense. There is evi-
,UNITEI> STATES rI.
depce,that I would be willing to submit to the jury of a corrupt motive. All those things are necessary to make out this offense, but insufficient without proof of an additional fact. The word" extortion" implies that the money paid was extorted on the part of the one who received it, and was paid unwillingly by the party paying the same, and the weak point here is that the prosecutionha$ utterly failed to introduce any evidence whatever that this money was not voluntarily paid by Capt. Sprague, he knowing at the time that .it was in excess of the amount that was reo quired to be paid, and for that reason I do not think that any conviction of the defendant on this indictment would be lawful. This proposition is sustained by the fonowing authorities: 1 Russ. Crimes, (9th Amer. Ed.) 207; 7 Amer. & Eng. Ene. 'Law, 591; (Jom. v. Dennie, Thacher, Crim. Cas. 165. The testimony of '}Ir. Fennimore, as I remember it, is the strongest of any testimony in the case going to show that the fees concerning which he testified were extorted. He states that they charged that amount, but his testimony is too weak to go to the jury to connect the defendant with any particular transaction, as the one who exacted the payment. He states in a general way that his instructions in the custom-house were to do so and so, but fails to instance any particular order or !>truction given by the defendant. The indictment alleges that those excessive charges were made with the intention of injuring and oppressing Capt. Sprague. Capt. Sprague has not been called as a witness here, and there is not any evidence that he ever protested against paying those charges, or that he did not pay them voluntarily after reading the fee-bill, and with full knowledge of what the legal charges were. In addition to this, and in support of some one or more counts in the indictment, it is shown by the evidence that some of the fees were not paid by Capt. Sprague, but by a custom-house broker, who was acting fiS the agent of Capt. Sprague, or of the owners of the vessel, and in paying them he should know what the fees were, and the master of the vessel should also know what the fees were, and what his duties were, and, if he paid any money without objecting, it would be very hard to say that the evidence here was sufficient to convict this defendant <>f extortion. But this case is not as strong as that, because it fails to show that Capt. Sprague did not voluntarily on his own part tender and pay this money without any request' or act of the defendant in fixing the amount. In answer to the contention that the mere taking of illegal fees by an officer of the United States is punishable as extortion under this section, I will remark, in the first place, that the language used by congress in this section does not imply" any such rule of law, because the crime of extortion at common law was not proven by the mere taking of excessive or illegal fees by an officer unless they were exacted and paid unwillingly, under color of his office. And congress has indicated very clearly in the Revised Statutes that it does not regard the mere taking of illegal fees as being synonymous with, extortion. The law in the case of pension agents is a special enactmeil,f of andp!oviding fqr those particular Congress