
    No. 10,492.
    The State of Louisiana vs. Pierre Lubin.
    An objection, marte for tlie Urst time on appeal, that a pleading' made below had been presented too late, can not be considered by the appellate court, for the reason that the question therein involved had not been submitted to or decided by the trial judge.
    In a prosecution under See. 868, Revised Statutes, which provides for the punishlnent of “ any judge, justice of the peace, sheriff, coroner, constable or other civil officer," for oppression orextortioii undercolor of liis office, it is essential to charge and prove that the accused was an officer as designated in the statute.
    The omission in an indictment or information of such averment is a defect of substance, which is not waived by pleading to tlie indictment or cured by the verdict, lienee, tlie defect can bo set in a motion in arrest of judgment.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Rost, J.
    
    
      Walter H. Rogers, Attorney General, for the State, Appellee.
    
      Charles A. Baquie for Defendant and Appellant:
    1. Tlie Supreme Court will take no notice of points and objections raised by either party for the first time in his brief before this court, when such matters were not passed upon by tlie court a qua and form no part of the subject matter or questions of law brought up for review hy the appellant.
    2. A motion in arrest of judgment is seasonably made when filed on tlie third judicial day following' the trial.
    3. Documentary evidence offered by the State on the trial of the case on its merits, and entirely disconnected with the question of law raised in arrest and appealed to this court, should not be included in the transcript, and when so erroneously included by the clerk will he disregarded hy this court.
    
      1. The offence of oppression and extortion in office can only be committed by one of (lie public officers mentioned in R. S., Sec. 868, and in tlie Act Sio. 57 of 1888, acting in his official capacity, and that capacity must be alleged in tlie information. State vs. Anderson, 30 An. 557.
    5. The failure* io state what public office, if any, vas held by the accused at the time of the commission of the alleged offence, vitiates tlie information and all the proceedings had thmmiulor.
    6. This being an error of substance and not of form, the accused vas at liberty to urge it either in a motion to quash or an arrest of judgment. lie has chosen the latter. He has waived no legal right by pleading to the information, nor is the defect cured by the verdict. 32 An. 565, State vs. Palmer.
   The opinion of the court was delivered by

Pochk, J.

Defendant appeals from a conviction under an information charging that he had “ exacted and extorted under color of Ms office the sum of $3,” and from a sentence of afine of $301. His complaint is from the ruling of the trial judge in rejecting his motion in arrest of judgment, which was based on the omission of the pleader to state or mention in the information that the accused held any office at the time that he is charged with having extorted money under color of his office.

The judge held that'the defect of the information was one of form, and not of substance, and that, therefore, the objection came too late, after the jury had been empanelled.

On appeal, the State makes the point that the motion in arrest having been filed more than four days after conviction, was not presented within a reasonable time, and that, therefore, it should not be considered.

But as this is not one of the proceedings which takes place, or originates in this court, we have no other power to review it but under our appellate jurisdiction, and the record shows that the objection now urged was not made below, and that, therefore, no ruling was made thereon by the trial judge. Hence, we can not consider the point made here for the first time.

In the case of the State vs. Romano, 37 An. 98, this court took occasion to reaffirm the pre-existing rule on this question, and which was formulated thus: ‘ ‘ The appellate court can not consider and determine questions of law which were not submitted to and passed upon by the trial judge.” State vs. Arthur, 10 An. 265; State vs. Bass, 11 An. 862.

In the cases quoted by the Attorney General in support of the principle which he invokes, the point had been submitted to and disposed of by the trial judge, State vs. Fritz, 27 An. 360; State vs. Gotten, 36 An. 980.

On the merits of the motion in arrest, the question presented for solution is to determine whether the defect complained of is one of form or of substance.

The statute on which the prosecution is predicated reads:

“Any judge, justice of the peace, sheriff, coroner, constable or other civil officer who shall be guilty of oppression or extortion in the administration or under the color of his office, shall, on conviction, suffer fine or imprisonment, or both, at the discretion of the court.” R. S., Sec. 868.

From the plain language of the statute it is very clear that it is of the very essence of a prosecution thereunder that the accused must be charged and proved to hold one of the offices therein designated. Under that statute, it is too clear for argument that one who is not a “ judge, justice of the peace, sheriff, coroner, constable or other civil officer” can not be guilty of oppression or extortion under the color of his office. Now, in the information under discussion, the District Attorney used the following language: ‘ ‘ That one Pierre Lubin, late of the parish of St. John the Baptist, on or about the 17th day of August, in the year of our Lord 1889, with force and arms, in the parish aforesaid, and within the jurisdiction, etc., * * * did unlawfully exact and extort, under the color of his office, the sum of $3.”

The information is throughout entirely reticent as to what office, if any, the accused held at the time that he exacted and extorted money.

It is thus'very apparent that the information lacked an essential ingredient, without which no crime was charged and no conviction could be legally obtained.

We are clear in the conviction that the omission was not of the kind which is cured by joinder of issue and by verdict.

The omitted averment is a matter of substance; hence, we hold that it was not waived by pleading to the information or cured by the verdict. State vs. Palmer, 32 An. 565; State vs. Durbin, 20 An. 408; State vs. Edson, 10 An. 229; State vs. Stiles, 5 An. 324.

We therefore conclude that the information was essentially and iatally defective, and that the motion in arrest of judgment should have prevailed.

It is therefore ordered that the verdict and sentence appealed from be annulled and set aside, that the information presented in this case be quashed, and that the defendant be discharged.

Judgment reversed.  