(аfter stating the facts). The statutory provision in question (Acts 1885, ch. 177, §28) gives the tax list of county and State tаxes, with the proper order of the county commissioners entered thereon as prescribed, “the force and effect of a judgment and execution against the propеrty of the person charged in such list,” when the same *505 went into the hands of the sheriff or tax collector for collection, hut this did not imply that it was to be treated as an execution in the hаnds of the sheriff against each tax payer, .so as to entitle him at once and certainly to an execution fee of fifty cents, as in case of an execution in his hands, ■commаnding him to collect the sum of money therein specified, from one party for another named. There was no provision that in terms or effect gave the sheriff such right. He, on receiving the tax list, at first held the same to permit the tax payer to pay the taxes due from hhn without cоsts. The statute mentioned (§37,) required him to “ attend at the court-house or his office in the county town during the months of September and November for the purpose of receiving taxes,” and in likе manner, “to attend at least one day during the month of October at some one or morе places in each township,” of which notice should be given, to receive taxes — the obvious purpose being, to give tax payers convenient opportunity to pay withоut cost. If any ■one of them should fail to pay voluntarily, then the sheriff becomes authorized to seize and sell the property of the delinquent, to make the sum of money required, and in case of such seizure and sale, he becomes entitled, if at all, to an ■execution feе, because, in that case, the “ tax list” served the purpose of an ordinary execution. So it is clear that the defendant had no right to demand and receive from the prosecutor the fee of fifty cents. But the present revenue law expressly provides that the sheriff shall have such fee in case of levy and sale of property to pay taxes.
We think, however, that the Court erred in directing the verdict of guilty to be entered, upon the ground that the charge made in the indictment was not proven substantially as made. The charge was that the dеfendant, “ being one of the special tax collectors in and for the county and State aforesaid,” &c. The proof was that the defendant was a deputy sheriff, qualified to collect taxes and account for the *506 same to the sheriff. A tax collector is an offiсer whose sole duty it is to collect the State and county taxes, and a special tax collector is one appointed in the place of the sheriff, in case he fails to qualify himself to collect the same.
It may be, the defendant went to trial under his plea оf not guilty, prepared to defend himself against the charge made against him as special tax collector, but not as deputy sheriff. Moreover, if he should be indicted as deputy sheriff for the extortion charged upon him in this action, he could not plead his conviction or аcquittal in this action, in that, because, the two charges would be different, not simply in form, but in substancе.
Further, the charge was that the defendant collected from the prosecutor two dollars and thirteen cents as the tax due from him to the county and State for the fiscal year оf 1886-87, whereas, the tax so due from him was but one dollar and sixty-three cents, &c. The proof was thаt the defendant demanded and collected but one dollar and sixty-three cents as tax so due, and in addition thereto, fifty cents as and for his fee, which he claimed he had a right to colleсt. Now the charge as made is so materially different from that proven, as that a conviсtion or acquittal in this action could not be pleaded in a subsequent action for extorting fifty cents as a fee.
The defendant is charged as a special tax collectоr with extortion in collecting more money as taxes for the county and State than was due from'the prosecutor; the proof was that he, as deputy sheriff, collected the exаct amount so due, but unlawfully collected a fee for himself of fifty cents not due.
The offence charged and that proven, though similar in their nature, were so distinctively different as to the mаterial facts of each, as that they were not the same, but distinct offences in contemplation of law. The Court ought, there *507 fore, to have directed a verdict of not guilty to be entered, and given judgment for the defendant.
There is error. Let this opinion be certified to the Superior Court according to law. It is so ordered.
Error. Reversed.