
    PHILLIPS v. STATE.
    (No. 9266.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied March 10, 1926.)
    1. Extortion &wkey;>4 — Evidence that justice of the peace collected and appropriated tine from young man and lady parked by side of road1, but not violating law, held to support conviction of extortion (Vernon’s Ann. Pen. Code 1916, art. 363; Pen. Code 1925, art. 365).
    In prosecution for extortion under Vernon’s Ann. Pen. Code 1916, art. 363, and Pen. Code 1925, art. 365, evidence that justice of the peace approached young man and lady parked by side of road near city, and who were not violating law, and charged them with violating law, and accepted and appropriated to his own use a fine, held sufficient to sustain conviction.
    2. Extortion <@=>15 — Evidence' of former instances in which justice of the peace had collected fines and made report to county auditor after having collected number of them held properly excluded in prosecution for extortion (Vernon’s Ann. Pen. Code 1916, art. 363; Pen. Code 1925, art. 365).
    In prosecution for extortion under Vernon’s Ann. Pen. Code 1916, art. 363, and Penal Code 1925, art. 365, testimony of accused that he often collecte.d fines similar to one claimed to have been unlawfully collected and appropriated to his own use, and that he made report to county auditor after collecting number of them, held properly excluded.
    3. Extortion <&wkey;>9 — Exclusion of testimony that accused was willing to pay over money claimed extorted to whoever was proper authority held proper (Vernon’s Ann. Pen. Code 1916, art. 363; Pen. Code 1925, art. 365).
    In prosecution of justice of the peace for extortion, under Vernon’s Ann. Pen. Code 1916, art. 363, and Pen. Code 1925, art. 365, by accepting and appropriating to his own use fees not allowed by law, testimony of accused that he was willing to pay over money claimed to have been extorted to whoever was proper authority to receive it held properly excluded; intent while on trial being immaterial.
    
      4. Extortion <&wkey;l5—In prosecution of justice of peace for willfully collecting fees from people parking cars off highway near city, testimony of former mayor as to complaints about such parking held properly excluded (Vernon’s Ann. Pen. Code 1916, art. 363; Pen. Code 1925, art. 365).
    In prosecution of justice of the peace for extortion, under Vernon’s Ann. Pen. Code 19-16, art. 363, and Pen. Code 1925, art. 365, by receiving and appropriating fines -from people parking cars at night without lights off highway near city, testimony of former mayor as to complaints he had received from residents of city to such parking held properly excluded.
    5. Extortion <@=n!5—In prosecution of justice of peace for willfully receiving and appropriating fees not allowed by law, testimony of custom of justice court to collect partial fines and give defendants time to pay balance held properly excluded (Vernon’s Ann. Pen. Code 1916, art. 363; Pen., Code 1925, art. 365).
    In prosecution of justice of the peace for extortion under Vernon’s Ann. Pen. Code 1916, art. 363, and Pen. Code 1925, art. 365, for receiving and appropriating payment made on alleged fine for parking at night without lights, which did not constitute violation of law, evidence of custom of justice court to collect partial fine and give defendants time to pay balance held properly excluded.
    6. Criminal law <&wkey;>l 158(3).
    Conflicting evidence, touching alleged misconduct of jury, raises question of fact for trial court, and his ruling will not be disturbed in absence of showing of abuse of discretion.
    On Motion for Rehearing.
    7. Criminal law <@=^>'1099 (II).
    Merits of bills of exception complaining of rejection of proffered testimony cannot be considered, in absence of statement of facts properly authenticated by trial judge.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    J. S. Phillips was convicted of extortion, and he appeals.
    Affirmed.
    Yarbrough & Tipton, of Electra, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Wichita county for the offense of willfully collecting and receiving fees of office not allowed by law, and his punishment assessed at confinement in the penitentiary for a term of two years.

The evidence is amply sufficient to support the verdict. The facts show that the appellant was a justice of the neace, and as such approached a young man and young lady parked by the side of the road near the city of Wichita Falls, and whom the facts show were not violating any law known to the statutes of Texas, and charged them with violating the law, and on the next day thereafter accepted from the young man involved $7, and appropriated the same to his own use and benefit.

Bill of exception No. 1 complains at the court’s action in refusing to quash the indictment. This motion to quash was properly overruled; the indictment follows the approved form, and charged an offense against the laws of Texas.

The second bill complains at the court’s action in refusing to instruct the jury to return a verdict of not guilty on the second count in the indictment, the one on which the appellant was convicted. The evidence is not only amply sufficient to support this count, but it is practically undisputed that appellant was guilty thereunder.

Bill No. 3 complains at the court’s action in refusing to permit the appellant to testify that he could show the jury on his docket many instances where he had collected fines similar to this one, and when he had collected a number of them he would' then make a report to the county auditor. This testimony was not admissible. The fact that he had violated the law in other instances would be no justification for its infraction in this case.

By bill No. 4 complaint is made at the court’s action in refusing to allow the defendant to testify that he was willing to pay over this money to whoever is the proper authority to receive it. This testimony was properly excluded. The defendant was not to be judged by his intent or purpose while on trial, but was properly tried on his conduct and intentions at the time the alleged offense was committed. What has just been said also disposes of bill of exception No. 5.

Bill No. 6 complains at the court’s action in refusing to permit the witness Calvert to testify that, while he was mayor and city recorder of Electra, he received complaints from the residents of Electra with reference to people parking their ears off the highway around Electra. This testimony was properly excluded. It may be said in passing that the right to quietly park a car along the public highway is one that has not yet been denied to the citizens of Texas, and the fact that some person or persons may complain at this conduct fails to justify a justice of the peace in including it in the category of criminal offenses.

Bill No. 7 complains at the court’s action in refusing/to permit the witness Calvert to testify that he was familiar with the practice of collecting and paying out fines in precinct No. 4 of Wichita county, and that it was customary for the city court and justice court to collect partial fines and give the defendants time to pay the balance. Under the facts in this case, as disclosed by this record, this testimony was properly rejected. A defendant generally cannot be heard to invoke a custom to justify a violation of a plain and unambiguous statute and the facts in this case do not bring it within any exception to this rule. The testimony of the witness Murchison was admissible for the purpose of contradicting the testimony, given by appellant while a witness in his own behalf.

By bill No. 9 appellant complains at' the misconduct of the jury. We have carefully considered this bill, and have reviewed the facts testified to by the jurors on the hearing on the motion for new trial, and it is manifest that the evidence touching the ques-ion of misconduct was very materially conflicting, and that there was entirely sufficient evidence introduced on this motion to justify the court in believing that no misconduct occurred. It has been repeatedly held that-when a question of fact is raised by evidence touching alleged misconduct of the jury, the trial court is the proper tribunal to pass on this issue of fact, and, unless the record shows his discretion has been abused, his ruling with reference thereto will not be disturbed. A review of the facts in the instant case convinces us that there was no abuse of the trial court’s discretion in refusing the motion for a new trial because of the alleged misconduct of the jury.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The offense is extortion as defined in article 363, Vernon’s Tex. Crim. Stat. vol. 1, and in article 365, Pen. Code 1925. The indictment appears in accord with Will-son’s Crim. Forms, No.. 174.

The specific averment is, in substance, that the appellant, a justice of the peace, authorized to demand and receives of office, did unlawfully, willfully, and knowingly extort, collect, and receive from J. C. Andis the sum of $7, 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 ear and turned out the lights. Appellant a'ecosted 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 cheek by paying cash as soon as possible. He did pay $7 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, pur 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 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 An-dis 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 com.plaints 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 ease that the parties arrested were doing any unlawful thing or had any whisky 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 that 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 hereinabove 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 issue is before the court, but, in the absence of Knowledge of the evidence which was given upon thd 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 called “Clay and Archer 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 know that they 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 othey officers in the vicinity.

The motion for rehearing is overruled. 
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