113 Neb. 576 | Neb. | 1925
The plaintiff in error (hereinafter called the defendant) was convicted in the district court for Gosper county under an information charging him, in count 1, with a violation of section 9582, Comp. St. 1922, and, in count 2, with a violation of section 9579, Comp. St. 1922. At the close of the state’s evidence, on the defendant’s motion, the court
The errors assigned are: (1) The information is ' fatally defective, in that it does not charge a crime under either section 9579 or section 9582, Comp. St. 1922; (2) the evidence does not support the verdict; (3) the court’s instructions Nos. 1 to 7, inclusive, severally are foreign to the issues, erroneous, and prejudicial to the defendant; (4) the court erred in overruling defendant’s motion in arrest of judgment and the defendant’s motion for a new trial.
Assignment No. 1. The count of the information under which the defendant was tried, excluding the formal parts, is in the following language:
“In Gosper county, Nebraska, on or about the 11th day of March, 1924, Harvey McKenzie, the defendant, maliciously, feloniously, and unlawfully under threats of exposure for crime, in this, to wit, said Harvey McKenzie threatened to accuse and expose one Dick Miles the minor son of J. M. Miles for the crime with others on or about the first day of March, 1924, in the county of Gosper and state of Nebraska, of stealing, taking and carrying away the sum of $500 in money property of Harvey McKenzie and did then and there extort and demand of the said J. M. Miles, that unless he did then and there promise to pay to the said Harvey McKenzie the sum of $500 as follows, $100 cash money and $100 on the first day of each month thereafter, until the full sum of $500 was paid by said J. M. Miles to the said Harvey McKenzie, that he the said Harvey McKenzie would cause the said Dick Miles to be arrested and prosecuted for said crime of stealing, taking and carrying away the sum of $500, that said charge was false, and to avoid the said false charges and exposure the said J. M.
This charges that the defendant, “under threats of exposure for crime”—the larceny of $500 by Dick Miles, son of J. M. Miles—did extort and demand money from J. M. Miles. This, it is claimed, did not charge a crime under the statute. The information charges the crime in the language of the statute, and this is^ sufficient so far as the formal presentation of the facts, existing in this case, are concerned. Sandlovich v. State, 104 Neb. 169; Goff v. State, 89 Neb. 287; Cordson v. State, 77 Neb. 416. And, unless the phrase, “under threats of exposure for crime,” etc., is confined to a threat to expose the particular person from whom it is sought “to extort money or pecuniary advantage,” this information is sufficient.
The gist of the crime described in section 9582, Comp. St. 1922, is the extortion of “money or other valuable consideration.” Green v. State, 157 Ind. 101, See, also, State v. Debolt, 104 Ia. 105; Lee v. State, 16 Ariz. 291, Ann. Cas. 1917B, 131; State v. McGee, 80 Conn. 614; Eacock v. State, 169 Ind. 488.
The threats of exposure do not constitute the crime. Rather, it is the duty of the individual to make the exposure, and if he, in fact, is instrumental in causing a prosecution for a criminal act, it will not constitute an offense and probably will merit commendation.
“Extort” means to gain by wrongful methods; to obtain in an unlawful manner; to compel payments by means of threats of injury to person, property, or reputation. State v. Richards, 97 Wash. 587. See, also, State v. Adams, 30 Del. 335.
“Threat,” in criminal law, is a menace or declaration of one’s purpose or intention to work injury to the person,
The defendant urges that the effect of this threat, as alleged, was that he would institute a prosecution for larceny, and hence it was not a threat of exposure, but of accusation, and only applicable to a charge under section 9579, supra. In so doing defendant fails to recognize that “expose” is a broader and more comprehensive term than “accuse,” and that exposure may be brought about by accusation as well as by the various ways he describes, and be none the less exposure. There may frequently be states of fact constituting an offense under either section 9579 or 9582, supra. The present case is such an one.
If we assume that section 9579, supra, was nonexistent, the information would charge a crime under section 9582, supra. It is alleged that the defendant “threatened to accuse and expose one Dick Miles,” etc., but the most that can be said with reference to the words “accuse and” is that they are surplusage. Hase v. State, 74 Neb. 493. See, also, Smith v. State, 109 Neb. 579. “The test by which to determine the sufficiency of an indictment” or information “is whether enough remains after rejecting all unnecessary averments thereof to satisfy the requirements of the statute.” Blodgett v. State, 50 Neb. 121. If, therefore, the words “accuse and” are omitted, there remains sufficient to charge the crime of blackmail under section 9582, supra. There is alleged in the information all the facts necessary to bring the charge within the intent and meaning of the statute, and when this has been accomplished the information is sufficient.
Assignments No. 2 and No. 4 will be considered together. The theory of the defendant was that he was robbed by the son of the complaining witness of $500, and that he was seeking a return of that which had been wrongfully taken from him, and that he had made no threats to expose and did not attempt to extort money. This was the issue to the determination of which the evidence of both state and defendant was directed. The evidence was conflicting, and the issue was fairly submitted to the jury and its verdict should not be disturbed.
“If a finding of a jury is attacked as not sustained by sufficient evidence, it will not be disturbed by .the appellate court unless manifestly wrong.” Ward v. State, 58 Neb.
It will be observed that this rule was adopted by this court early in its history and has been consistently followed until the present time, and no good reason is assigned for a departure therefrom.
In the second division of defendant’s argument authority is cited to the effect that, where a threat is made merely in sport, it will not constitute the offense of blackmail. There is nothing in the record in this case which would authorize or warrant the inference that the defendant had made the threat charged in the information in sport. Further, he denied having made the threat and admitted having received the money.
Assignment of error No. 3 is the giving of instructions No. 1 to No. 7, inclusive, given by the court on its own motion. They have been examined and compared with the information and evidence and no error is found therein. The defendant complains that the instructions did not submit the question of intent. On one page in his argument he calls attention to the fact that under section 9582, supra, it is not essential that the threat be made with intent to extort from the person to whom the threat is addressed, and on another page of his argument complains that the court did not so instruct. There is no error in the instructions.
In subdivision 4 of plaintiff’s argument the information is attacked as not charging a crime because it attempts to set forth the specific facts, and that facts set forth are not those described in section 9582, supra. As has been heretofore pointed out, the threat need not refer to some act of the person threatened, but may relate to a member of his family or any one through whom the one threatened may be reached; hence, the allegation that the defendant threatened J. M. Miles is within the limitation of the offense described as to the manner and person to be affected by the threats.
The defendant urges that, because the evidence shows that the arrest of Dick Miles was threatened, it was a threat
The consideration of the question presented makes necessary to some extent an analysis of the section so far as material to the offense charged in count 1 of the information in this case. To maliciously threaten to accuse of crime is not the same as a malicious- accusation. The latter is to procure the accusation or prosecution of another from improper motive and without probable cause, and is very similar to malicious prosecution. To maliciously threaten to accuse of crime does not necessarily mean that the prosecution is intended at all, but means that one acts with evil intent and evil motive by threats of criminal prosecution, through fear of which prosecution the will of the individual threatened is intended or attempted to be overcome. The act made criminal is the intent to extort money or to compel action against the will of the person threatened because of fear of prosecution for a criminal offense, the fear being induced because of apprehended accusation
It is well recognized that frequently two offenses may grow out of the same transaction. A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either does not exempt the defendant from prosecution and punishment under the other. It is apparent that these two sections illustrate this principle or rule. 16 C. J. 272, sec. 453.
The defendant under division 3 of his argument urges his right to receive such money or property as he claimed was due him. But this proposition was fairly and correctly submitted to the jury by paragraph No. 7 of the court’s instruction, as follows:
“You are instructed that, where property is, stolen or taken from the owner against his will and consent, the owner has the legal right to receive or accept a return of the same from the party who stole it, or from another act
It makes no difference that the money sought to be extorted in violation of the act was legally due. Murphey v. Virgin, 47 Neb. 692. See, also, Tuyes v. Chambers, 144 La. 723. That is, an individual cannot, by threats of exposure as to some criminal or scandalous ■ act not connected with the transaction out of which the debt arose, compel its satisfaction without becoming liable to a prosecution under this provision. J. M. Miles was not legally liable for the $500, even though his son may have taken it, and for the defendant to extort from J. M. Miles by threats of exposure was to make the defendant liable to a prosecution under section 9582, supra.
The court find no error in the record, and the judgment is
Affirmed.