148 Mass. 27 | Mass. | 1888
This indictment is upon the Pub. Sts. c. 202, § 29, for maliciously threatening to accuse a person of the crime of burning a building not his own, with intent to extort money. The defendants offered to prove that the charge threatened was true; and the evidence was excluded. It is contended that the evidence was competent on the question of malice. The malice required by the statute is not a feeling of ill-will toward the person threatened, but the wilful doing of the act with the illegal intent. Commonwealth v. Goodwin, 122 Mass. 19. If the threat was wilfully made, with the intent to extort money, it was a malicious act, and the fact that the charge was true would be immaterial.
It is further contended, that the evidence was competent upon the question of intent, and Commonwealth v. Jones, 121 Mass. 57, is relied on. That was an indictment for maliciously threatening to accuse one of an indecent assault upon the wife of the defendant, with intent to extort money. There was conflicting evidence whether the defendant threatened to prosecute for an assault on his wife unless money was paid to him, or whether he
In the case at bar, the crime threatened to be charged did not involve any wrong to the defendants, and it is not contended that the defendants made any demand for reparation for a wrong done to them, or that the evidence offered had any tendency to show that the demand was not with intent to extort money. The argument is, that the evidence is competent upon the question whether the defendants intended to threaten to accuse of the crime unless the money was paid, or only demanded the money as a reward for not disclosing facts which were within their knowledge. There is no conflicting evidence as to the language used by the defendants. It was, “ You are the man that set the fire, and unless you give us one hundred dollars we will make it hot for you. We will make a jail-bird of you.” Evidence that the party threatened had in fact committed the crime was not competent to show that these words did not import and intend a threat to accuse him of having committed it. Evidence that the crime was in fact committed by the person threatened and another person, who were witnesses for the Commonwealth, was not competent to impeach them.
The indictment alleges a threat to accuse of burning “a building not his own, to wit, the store of John D. White.” It appeared in evidence that the building which was burned, and to the burning of which the threat related, did not belong to John D. White, but to another person, although John D. White occupied it as a tenant until after the fire. It was objected that there was a variance between the allegation and the proof. Section 2 of the Pub. Sts. c. 203, prescribes the punishment for burning, among other buildings named, the “ store ” of another.
