No. 759. | Tex. Crim. App. | Mar 18, 1896
Appellant was convicted on a charge of sending a threatening letter, and her punishment assessed at a fine of *596 $100 and six months' imprisonment in the county jail; and from the judgment of the lower court she prosecutes this appeal. The charge in this case is brought under Art. 966, Rev. Penal Code, making it criminal for any one to send to another a letter threatening to kill or in any manner injure the person of another. It will be noted that the statute in question, which is an exact copy of Art. 813, of Willson's Penal Code, makes it a criminal offense to send or deliver to another a letter threatening to accuse such other person of a criminal offense, with the view of extorting money; while the last part of said article makes it an offense to send or deliver a letter threatening to kill or in any manner injure, etc., without it being with the view to extort money, etc. The information in this case does not charge that the letter in question threatened to accuse such other person of a criminal offense, with the view of extorting money, but is based on the latter portion of said article, making it an offense simply to send or deliver a letter threatening to kill or injure another. The information, however, while proceeding to charge the offense under the last portion of said article, alleges that the threats were to kill or injure, with the view of extorting money, etc. It was unnecessary that the information should have alleged, in this instance, that the threatening letter was sent with the view of extorting money. Concede, however, that the allegation that it was for the purpose of extorting money could be rejected as surplusage, which is doubtful, yet it must be shown that, before a charge of this character can be sustained, the letter clearly contained a threat to kill or injure such other person, before the prosecution can be sustained. The letter in this case, is set out in hæc verba; and we have examined the same, in order to ascertain the character of threat it contains. The letter, after setting out that the prosecutor, Schnieder, should deposit $1000 in a certain grave in the cemetery, near Dallas, proceeds to state as follows: "We give you ample time, and that is one week from the date of this note. Should you fail to comply with our request, make this demand known to the public, or cause the one who goes to get your deposit molested in any manner, shape, or form, woe be unto you and yours." The last sentence, it is assumed, contains the threat intended in this case. It certainly does not contain any specific threat to do violence, but the threat, if any, is to be gathered from the general expression used, "woe be unto you and yours." The Century Dictionary defines "woe" as follows: "Grief, sorrow, misery, heavy calamity;" and it gives a number of illustrations as to how the word "woe" is used, some of them taken from the Bible. "Woe" is used both in the Old and New Testaments, sometimes as prophetic of calamity, or affliction, and sometimes as denunciatory. The language used in this case does not indicate by direction that the writer herself intended to visit upon Schnieder any calamity or affliction. It rather implies that, in case he fails to comply with her request, he will suffer some calamity or affliction, which she invokes will be visited upon him by some higher power; that is, she invokes some trouble or calamity may come upon him, without herself bringing it about. The pleader *597 himself seems to have apprehended this difficulty, because he treats the expression as a threat to do bodily injury to the person of said Schnieder and to his family, and to destroy and injure the said Schneider's property. In our opinion, the threat contained in the letter, in order to have afforded the predicate for the information, should have been more definite and explicit. Appellant also contends that there is a variance between the name of the alleged injured party, as set out in the information, and that contained in the letter. The information states that the defendant did knowingly send to "Jules E. Schnieder a certain letter, of the tenor as follows, to-wit." The address at the beginning of said letter is "Mr. Jules E. Schineoder." It has heretofore been held by this court, in a case of this character, that the letter must be set out according to its tenor, as in forgery. See, Tynes v. State, 17 Tex.Crim. App., 123. If this were a charge of forgery, there would clearly appear a variance between the purport and tenor clause of the information. It should have been alleged in the information, by innuendo, that the sender meant by the address "Mr. Jules E. Schineoder," as contained in said letter, "Mr. Jules E. Schnieder." By such an innuendo, proof would have been been admissible to show that by the use in the address of "Mr. Jules E. Schineoder," was meant "Mr. Jules E. Schnieder," the party whom it is alleged the appellant intended to injure. The judgment is reversed, and the prosecution dismissed.
Reversed and Dismissed.