Samuel A. YOUNGHANS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida. Third District.
*32 Robert C. Lane and Curtiss B. Hamilton, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Special Asst. Atty. Gen., for appellee.
PEARSON, Judge.
The appellant was charged under Sec. 838.06, Florida Statutes 1955, F.S.A., with accepting unauthorized compensаtion for performance of duty as a police officer in the City of Miami, Florida; Sec. 838.07, Florida Statutes 1955, F.S.A., provides the penalty for the violation of Sec. 838.06. The appellant was convicted and sentenced to one year in the state penitentiary. The salient portion of the information upon which the appellant was tried is as follows: "* * * being then and there a duly qualified police officer of the municipality of the City of Miami, Florida, organized and existing under thе laws of the State of Florida, did unlawfully accept compensation or other remuneration other than that provided by law, to wit: the sum of Seven Dollars, good and lawful money of the United States of America, from Charles J. Greenburg without reаsonable grounds for believing that the said compensation or remuneration so accepted was authorized by law, for the performance, nonperformance or violation of an act, rule or regulation that was then incumbent upon the said Samuel A. Younghans, as such police officer of said municipality to administer, respect, perform, execute or to have executed, to wit: that the said Samuel A. Younghans was then and there a duly qualified policе officer of said municipality and was authorized by said municipality to arrest persons within the corporate limits of said municipality who may be found by such police officer of violating the ordinances set by said municipality governing the morаl conduct of such persons within said municipality, and that it was thereupon incumbent on the defendant as such municipal police officer, not to accept, or receive any reward, compensation or remuneration *33 frоm any person charged by said police officer with a violation of any of the ordinances, rules or regulations of said municipality governing the moral conduct of persons within said municipality, and notwithstanding the duty thus incumbent upon the said Samuеl A. Younghans as such municipal police officer, the said Samuel A. Younghans did then and there while acting as such municipal police officer, on the 2nd day of July, A.D. 1956, did stop the said Charles J. Greenburg while the said Charles J. Greenburg was within the city limits of said municipality and orally charged the said Charles J. Greenburg with being a lewd person and detained the said Charles J. Greenburg, and during the period of such detention aforesaid the said Samuel A. Younghans unlawfully accepted from the said Charles J. Greenburg, said Seven Dollars in money as compensation and remuneration upon an oral agreement and understanding with said Charles J. Greenburg, that his, the said Samuel A. Younghans' action and judgment, as such police officer of the City of Miami, Florida, would be influenced in this, that he would release the said Charles J. Greenburg from said charges of being a lewd person and would not further detain the said Charles J. Greenburg on said oral charge of being a lewd person aforesaid and after the said Samuel A. Younghans had received said Seven Dollars in money from said Charles J. Greenburg, the said Samuel A. Younghans released the said Charles J. Greenburg from further detention, which said compensation and remuneration said Samuel A. Younghans did unlawfully accept as aforesaid * * *." As above stated, the act on which this charge was based is as follows: Sec. 838.06, Florida Statutes 1955, F.S.A.
"Unlawful for officers to accept unauthorized compensation for performance or nonperformance of duty. It is unlаwful for any officer, state, county or municipal, or any public appointee, or any deputy of any such officer or appointee, to exact or accept any reward, compensation, or other remunerаtion other than those provided by law, from any person whatsoever for the performance, nonperformance or violation of any act, rule or regulation that may be incumbent upon the said officer or appointee to administer, respect, perform, execute or to have executed; provided, that nothing herein shall be construed so as to preclude a sheriff or his deputies, city marshal or policeman from accepting rewаrds or remuneration for services performed in apprehending any criminal."
The appellant relies for reversal upon six assignments of error. The second assignment goes to the court's refusal to grant a requested charge of the defendant. This assignment was not argued, and will not be considered. The first and third assignments of error go to the sufficiency of the evidence to support the finding of the jury, and the fourth is to the effect that the verdict and the judgment is contrary to the law and еvidence. These general assignments are relied upon as the basis for appellant's contentions that (1) the evidence was insufficient for a conviction in that there was not introduced into evidence a copy of any ordinаnce of the City of Miami, specifying the duty that the defendant was alleged to have been performing at the time of the alleged acceptance of unauthorized compensation, and (2) that the trial court erred when it, of its own initiаtive, charged the jury by reading Sec. 838.06, supra, but failed to read Sec. 838.07, supra. The fifth and sixth assignments of error are to the effect that the appellant did not receive a fair trial, because of the participation of the trial judge in the questioning of the defendant. It is contended by the appellant the court erred in that the excessive questioning by the court was prejudicial to the appellant.
We find it most expeditious to dispose of the last question first. We have сarefully examined the record of all of the proceedings had before the court, and while we find it is undeniable that the court *34 participated actively in the questioning of the defendant, we do not find that this participation was prеjudicial to defendant's right to have a fair trial. The questions of the court were aimed exclusively toward a disclosure of the facts relied upon by the defense. A great many questions were necessary by the court inasmuch as the repliеs of the defendant were of such nature as to require additional interrogation by the court in order to determine their substance. Certainly, if the trial judge was not clear as to what a witness was attempting to state, he should have the witness clarify the statements. Clark v. State,
The crime of which the defendant is aсcused is purely statutory, and it follows that each essential element of the offense as set forth in the statute must be proved. Johnson v. State ex rel. Fox,
"Section 7486 [F.S.A. § 838.06], while infected with the element of bribery, is much broader in scope than the bribery statutes. It reaches only the acceptor of the bribe, but it also includes the crime of extortion аnd affects the officer, his deputy, or appointee if he exacts or accepts a bribe for the performance, non-performance, or violation of any act, rule, or regulation that he may be called on tо perform. It was framed in other words to reach and punish any misconduct on the part of a public officer or his deputy * * *.
* * * * * *
"* * * The source from which the reward of bribe came is not material; the official conduct that it actuated is the gist оf the offense. * * *"
The record before us reveals that the defendant as a police officer but not on duty went into Bayfront Park to look for perverts. He found a prospect and took the prospect into custody. After conducting the prospect to the police station the officer released his prisoner from custody and accepted a payment of money. The method used to get the prospect to the police station and make him a prisoner is not an essential element of the crime. It is immaterial whether the prisoner was lawfully or unlawfully made a prisoner. See Moseley v. State, 25 Tex. App. 515,
In this connection the Supreme Court of Florida has pointed out that under this section the duty of the officer may be one that he himself has assumed without being required by law to do so. Ewing v. State, Fla. 1955,
*35 "The gravity of official misconduct is emphasized, in our opinion, if the act corruptly undertaken is beyond the authority of the officer. If an act is done under color of office, it is done officially."
See also La Tour v. Stone,
It is next urged that the trial court erred in its charge when it read to the jury Sec. 838.06, supra, and failed to read Sec. 838.07, supra, which provides the penalty for the violation of the first section. The second namеd section reads as follows:
"Whoever violates the provisions of § 838.06 without reasonable ground for believing that the reward, compensation or remuneration exacted or accepted was authorized by law, shall be punished by imрrisonment in the state prison not exceeding ten years or by fine not exceeding one thousand dollars."
It must first be pointed out that the trial judge is not required to include the penalty for the offense in the charge. This is true even though the provision of Sec. 918.10(1) Florida Statutes 1955, F.S.A., is apparently to the contrary. Simmons v. State,
It is urged however that Sec. 838.07, supra, contains an essential element of the offense, to wit, "without reasonable ground for believing that the reward, compensation оr remuneration exacted or accepted was authorized by law." It is certainly true that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is evidence introduced in support thereof. Motley v. State,
For the reasons set forth the judgment is affirmed.
Affirmed.
CARROLL, CHAS., C.J., and HORTON, J., concur.