holding that extortion and attempted extortion are not continuing offenses
How later courts described this case
- holding that extortion and attempted extortion are not continuing offenses
- allegation of source and duty not always necessary where the duties arise "out of the very nature of the office"
- "[T]he ultimate question on this appeal is whether the trial court abused its discretion in granting the defendant's motion to dismiss the indictments."
- “to be guilty of an attempt to commit a crime a defendant must have intended to commit the crime itself”
Written by the judges who cited it.
The opinion
*377 Hehek, J.,
(concurring in reversal). The “misconduct in office” laid to the' accused in the first indictment could not “continue” as an offense after the passage of the ordinance in question, for the essence of the charge is that the accused, “in violation of his duty” as borough -attorney, did “demand, request and receive” from Lubben “a promise” of the payment of $15,000 in equal monthly installments of $500, commencing in July, 1949, “in return for an agreement or understanding” that the accused, “would use his influence and office” as borough attorney “corruptly to influence, exhort and advise the Mayor and Council of the Borough * * * to enact” the pending amendment of the local zoning ordinance. Such is the breach of official duty pleaded. The mere demand for the illicit quid pro quo did not serve to “continue” the offense so as to intermit the statute of limitations. Indictable misconduct in office involves the breach of a duty laid upon the incumbent by the law, either of commission or omission. It is conduct “by which the legal duties imposed by law have not been properly and faithfully discharged.” 67 C. J. S. 432. There is an obvious distinction of substance between a violation of a duty incident to an office and the later demand for payment of the corrupt consideration, after the breach or failure of duty bargained for.
The demand for the consideration constituted an attempt to commit the crime of extortion, and this is the offense charged in the second indictment, in certain, definite and legally sufficient terms. The grand jury itself made the distinction. I concur in the reasoning of the Chief Justice sustaining this indictment. Compliance with the demand would have constituted criminal extortion. If there be an intent to commit a given crime and a direct ineffectual act done- towards its consummation, the elements of an indictable attempt to commit the crime are present. 14 Am. Jur. 813 .