2 N.Y.S. 476 | N.Y. Sup. Ct. | 1888
This indictment is for attempting to extort money by the threat of charging the complainant, a married man, with living an adulterous life with a certain woman, whose name is mentioned in the indictment. The prosecution is founded on section 558 of the Penal Code, which declares that “a person who, knowing the contents thereof, and with intent by means thereof to extort or gain any money, * * * sends or delivers * * * any letter or writing threatening to expose or impute to any person any deformity or disgrace, is»punisliable by imprisonment for not more than five years.” The appeal book contains nothing but the judgment roll, and we are unadvised as to the nature and character of the proofs presented on the trial, and we must assume that the evidence was sufficient to sustain every material averment in the indictment. We are, therefore, on this appeal, limited to the examination of the single legal proposition presented by the demurrer, and renewed on the motion in arrest of judgment, which is: Do the facts stated in the indictment constitute an indictable offense? The learned counsel for the defendant makes the point that it should appear on the face of the letter or writing on which the prosecution is founded that the writer threatened to do one of the four things mentioned in the statute, and the character of the threat should be set out in the indictment; that in this case it does not appear on the face of either of the letters that the defendant made the threat that, if the complainant refused to make the loan of money as requested, he would charge him with having committed adultery with the woman named in the indictment, or with any other person. It must be admitted that, if the defendant had it in his mind, when he prepared and mailed the first letter, to make the accusation mentioned in the indictment, it is not clearly disclosed on the face of the letter, and the jury, on a mere perusal of the same, would not be permitted to find that the charge in the indictment was true. The rule, undoubtedly, is that a threat of the character mentioned in the statute must be made in the letter or writing delivered to the complainant, and, if this is not made to appear to the satisfaction of the j ury, the prosecution must fail. But, as we understand the rule, paroi proof may be introduced by the people for the purpose of showing that, by the use of the language, figures, and phrases employed by the writer, he threatened to make the charge as set forth in the indictment, and that the person to whom it was addressed so understood its meaning. If such is not the rule, much of the wrong and mischief intended to be reached by the statute would escape punishment. A person, by the use of a phrase or word, or by referring to some prior circumstance well known to both parties, might convey to the mind of the person addressed the understanding that, if the thing requested or demanded was riot done, the writer would accuse him of some criminal offense or violation of the moral laws of the community where he resided, which would bring him into contempt and disgrace. The gist of the offense is the attempt to extort money by a malicious threat to accuse of some crime. The words used do not con-