1 P.2d 496 | Cal. Ct. App. | 1931
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *292
By indictment presented on the thirteenth day of March, 1930, the defendants were accused of the crime of extortion, in violation of section
The crime of extortion is defined by section
"1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family; or,
"2. To accuse him, or any relative of his, or member of his family, or of any crime; or,
"3. To expose, or impute to him or them any deformity or disgrace; or,
"4. To expose any secret affecting him or them."
Comparing the indictment with the foregoing provisions of the Penal Code, it appears that the defendants were charged with the crime of extortion committed by threatening to expose "certain secrets" affecting the named or described persons. In other words, the charge is that the crime was committed by means of threats of the kind described in subdivision 4 of said section
In this action each of the defendants demurred to the indictment upon various grounds, which include the objections which are before us for consideration at this time. The demurrers having been overruled, defendants entered their pleas of not guilty. On May 10, 1930, a mistrial having been declared and the jury discharged, the cause came on for the second trial on June 23, 1930. Defendant Lavine moved for a continuance, which was denied. Defendant Johnson moved for severance, which was denied. Defendants entered pleas of "former acquittal" and "once in jeopardy". Each defendant objected to the jurisdiction of the *295 court, which objections were overruled. Each defendant objected to the introduction of any testimony, and these objections were overruled. The objections of defendant Johnson to the introduction of any evidence were made on the following grounds: "First, that the court is without jurisdiction to try the case on the ground that the statute on which the information is founded, is unconstitutional; second, that the defendant Johnson has been once acquitted on the charge set forth in the indictment; third, that the defendant Johnson has been once in jeopardy of the crime charged in the indictment; fourth, that there is an appeal pending in the District Court of Appeal of the state of California on behalf of the defendant Lavine and that this court is without jurisdiction to try the defendant Johnson jointly with the defendant Lavine because of the fact that appeal is pending. I further object to the introduction of any evidence in this case upon the ground that the indictment does not state facts sufficient to constitute a public offense." Defendant Lavine made the same motions, based on the same grounds as those above stated. The objections were overruled and the case proceeded to trial. We find no argument made relating to the so-called appeal of Lavine, which apparently was an attempt to appeal from a nonappealable order.
[1] In relation to point one, supra, we are of the opinion that the provisions of section
[4] Point three (Lavine brief) is that defendants could not legally be found guilty of "attempted extortion" when the charge was laid exclusively under section
"1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in the county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon conviction of the offense so attempted; . . ." The penalty for committing the crime of extortion by means of any threat such as is mentioned in section
But since there are provisions made by law for the punishment of the crime of attempting to commit extortion, it follows that the provisions of section 664 have no application in the case now before us. Section
[6] Point four (Lavine brief) relates to the action of the court in advising the jury to find for the People on the pleas of "prior acquittal" and "once in jeopardy". Since *298
there was not before the jury any evidence in support of those pleas, there could be no error in the jury's verdict, or in the advice from the court relating thereto. [7] The real contention underlying point four is that the court erred in excluding evidence offered by the defendants to support their special pleas. Hereinafter we have indicated the proceedings which took place at the first trial of the action, at which time the jury having failed to agree upon a verdict was discharged. The pleas of "former acquittal" and "once in jeopardy" are entirely based upon conditions arising out of the fact that at the first trial the case was submitted to the jury on the theory of a prosecution for attempted extortion, and not as a case of extortion. In other words, defendants claim that the charge of extortion was abandoned by the prosecution, and that the discharge of the jury without a verdict after the case had been thus submitted to them, in effect amounted to an acquittal of the main charge of extortion. It must be held in mind, however, that at all times the charge against the defendants, as set forth in the indictment, was a charge of extortion. It was only by virtue of this charge, supplemented by the provisions of the Penal Code (sec.
[8] Point five (Lavine brief) is that the evidence is insufficient to sustain the verdict, "and herein insufficient corroboration". The argument in support of this claim does not give us a direct statement of the particulars in which the evidence is insufficient. In a general way, however, we gather from the statements of counsel that they are insisting that the evidence does not show what the secret was which the defendants were threatening to expose; and that the evidence of the witness Berman was not corroborated as required by law. It is conceded, however, that if Berman was merely a feigned accomplice "working out of the district attorney's office" he did not need to be corroborated as required by section
[9] Under the head of "divers and sundry rulings" depriving defendants of a fair trial, we find the appellants claim that the court erred as to each of them, in denying their applications for severance of their trials; that the court erred in admitting and in refusing to strike out certain evidence relating to accusatory statements made in the presence of defendant Lavine. We find neither abuse of discretion nor error in these rulings of the court.
[10] It is contended by defendant Lavine that the court erred in refusing to give to the jury certain requested instructions quoted on pages 132, 135 and 136 of his brief. (The instructions have not been numbered, as they should have been, in the transcript.) In the instructions given by the court to the jury they were informed, among other things, that in order to constitute the crime of attempt to commit the crime of extortion alleged in the indictment, as to each defendant it was incumbent upon the prosecution to prove to the satisfaction of the jury and beyond a reasonable doubt, each of certain described elements. These elements as stated in the instructions (Clerk's Trans., p. 95) are definitely confined and limited to an intention and attempt to extort money or other valuable property from the person threatened, by means of a threat to expose a secret affecting the person threatened, or affecting a relative, or member of his family. In relation to circumstantial evidence the court instructed the jury as follows: "If the evidence relating to any circumstance in this case is, in view of all the evidence, reasonably susceptible of two interpretations, one of which would point to the guilt of the defendant and the other of which would admit of innocence, then it is your duty in considering such evidence to adopt that interpretation which will admit of defendant's innocence and reject *300 that which would point to guilt." We are satisfied that the instructions given to the jury very fully and fairly stated the law of the case; and particularly that they sufficiently covered the matters included in the said requested instructions, in so far as said requested instructions were correct in their statements of the law.
On reading the brief filed on behalf of appellant Johnson, we find that the assignments of error, although framed in different language, are in their substance, and in their principal elements, the same points relied upon by her co-defendant. As to the propositions thus duplicated in the briefs we have endeavored to give them appropriate attention in the foregoing paragraphs.
[11] Appellant Johnson further contends that the court erred in instructing the jury that in attempted extortion the crime depends upon the acts, mind and intent of the person threatening and not upon the effect or result upon the person to be coerced; and in instructing the jury that in the crime of attempted extortion a person may be guilty of an attempt to commit the crime of extortion though he does not, as he intends, produce fear on the part of the person from whom he attempts to extort money. We think that there was no error in the giving of these instructions. In the case entitled In re Magidson,
In People v. Gardner,
The judgments and also the orders denying motions for new trial, from which the defendants have appealed, are and each of them is affirmed.
Houser, J., concurred.
York, J., dissented.
A petition for a rehearing of this cause was denied by the District Court of Appeal on July 11, 1931, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 30, 1931.
Shenk, J., and Curtis, J., dissented.
REPORTER'S NOTE. — An appeal to the United States Supreme Court was allowed in the above case, and it is now pending. *302