207 P. 380 | Cal. | 1922
The appellant herein was tried and convicted upon the charge of extortion. In his appeal from the judgment entered upon such conviction he makes two main contentions as grounds for the reversal of such judgment. These are, first, insufficiency of the indictment; second, insufficiency of the evidence to sustain the verdict and judgment of conviction.
The defendant, with three other persons, whose names were Claude Morton, William W. Swan, and Lee Varain, were accused by the grand jury of the county of Los Angeles, by indictment, of the crime of extortion. The charging part of said indictment, which the appellant claims to be insufficient to charge said crime, reads as follows:
"The said Claude Morton, E.N. Sanders, William W. Swan and Lee Varain, on or about the 19th day of August, *746 1919, at and in the County of Los Angeles, State of California, did willfully, unlawfully, corruptly, knowingly and feloniously extort and obtain from Thomas M. Quinlin, with the consent of said Thomas M. Quinlin, Five Hundred Dollars ($500.00) in lawful money of the United States, which said Five Hundred Dollars ($500.00) was then and there the personal property of the said Thomas M. Quinlin.
"The said Five Hundred Dollars ($500.00) was obtained from the said Thomas M. Quinlin, and the consent of the said Thomas M. Quinlin was induced by a wrongful use of force and fear, in that the said Claude Morton, E.N. Sanders, William W. Swan and Lee Varain did then and there unlawfully, and without any legal justification, arrest and detain the said Thomas M. Quinlin, and did then and there threaten to accuse him, the said Thomas M. Quinlan, of a crime, to wit, the crime of engaging in the sale of intoxicating liquors in violation of the United States statutes, and did then and there threaten to incarcerate the said Thomas M. Quinlan in the County Jail of the County of Los Angeles unless he, the said Thomas M. Quinlin, did then and there pay to them, the said Claude Morton, E.N. Sanders, William W. Swan and Lee Varain, the said Five Hundred Dollars.
"The said Thomas M. Quinlin did then and there believe that the said Claude Morton, E.N. Sanders, William W. Swan and Lee Varain would enforce and carry out said threats, and then and there feared that the said defendants, Claude Morton, E.N. Sanders, William W. Swan and Lee Varain, would and could do so, and solely by reason of said force, unlawful injury, threats, belief and fear, did then and there consent as aforesaid, to the payment, as aforesaid, of said Five Hundred Dollars ($500.00), to the said defendants, Claude Morton, E.N. Sanders, William W. Swan and Lee Varain, and did then and there, on account of the said force, unlawful injury, threats, belief and fear, pay and deliver to the said defendants, Claude Morton, E.N. Sanders, William W. Swan and Lee Varain, said Five Hundred Dollars, as aforesaid."
It is the appellant's contention that the foregoing language in said indictment fails to sufficiently charge him with the crime of extortion as defined in sections 518 and 519 *747 of the Penal Code. These sections of the code read as follows:
518. "Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right."
519. "Fear, such as will constitute extortion, may be induced by a threat, either:
"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, 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."
[1] The appellant contends that the foregoing language of said indictment does not sufficiently set forth any threat on the part of the appellant or his associates, either to (1) accuse the prosecuting witness of any crime, or (2) to do an unlawful injury to his person; or (3) to expose or impute to him any deformity or disgrace; or (4) to expose any secret affecting him. The third and fourth of the specifications may be dismissed without comment as beyond the scope of said indictment. As to the second of said specifications the appellant contends that there is not to be found within the language of said indictment a threat to accuse Quinlin of any crime. The particular clause in the indictment thus attacked alleges that the said defendants "did then and there threaten to accuse him, the said Thomas Quinlin of a crime, to-wit, the crime of engaging in the sale of intoxicating liquors in violation of the United States statutes." The date fixed in said indictment upon which said alleged threat was made was August 19, 1919, and the proofs correspond to said date. This was prior to the time the so-called Volstead Act (
[2] There is in this indictment a further allegation of an additional threat inducing the fear on the part of the prosecuting witness through which the alleged extortion was accomplished. It consists in the allegation that the defendants "did then and there threaten to incarcerate the said Thomas M. Quinlin in the county jail of the County of Los Angeles unless he, the said Thomas M. Quinlin did then and there pay to them, the said Claude Morton, E.N. Sanders, William W. Swan and Lee Varain etc." The sufficiency of this averment is also called in question by the appellant, who contends that it is insufficient for the reason that the threat contained therein is not alleged to be a threat "to do an unlawful injury to the person" of the individual threatened, and hence is insufficient to satisfy the requirements of subdivision 1 of section
[3] The next contention of the appellant is that the evidence is insufficient to establish either of these two charges. *753 As to the first of these, viz., that the defendant extorted said money from Quinlin by the threat to accuse him of a crime, we are of the opinion that the contention of the defendant cannot be sustained. The record herein discloses that the defendant in arresting and detaining Quinlin posed and pretended to be acting as a federal officer and that as such he so arrested and detained Quinlin in the night-time and without warrant or other authority so to do. Quinlin testified that during the course of his said arrest and detention the defendant stated that "he had a charge against me of selling liquor, shipping liquor into Arizona, Washington, Idaho, and Nevada." He also testified that Sanders said that "he had enough on me to give me two or three years at McNeill's Island." He further testified that one or the other of the defendants threatened to accuse him of "shipping liquor into dry territory and selling whisky illegally." It is true that these statements of the prosecuting witness are not couched in the precise language of the indictment, but taken together and, as we have seen, uttered by the defendant while he was posing as a federal arresting officer, we think they fairly import a threat to accuse Quinlin of participating in the sale and transportation of liquors into dry territory in violation of the federal statutes then in being, making such acts a crime. What has been heretofore said with reference to the vagueness of such an accusation has application to its proofs. All that was necessary by way of definiteness in such proof was, first, that they should be sufficient to come fairly within the scope and terms of the indictment; and, second, that they should be sufficiently definite to advise a person of ordinary intelligence that he was being threatened with an accusation of having committed a violation of the federal laws then in being relative to the sale and shipment of intoxicating liquors. We think the foregoing testimony sufficient to measure up to both of these requirements under the rules laid down inPeople v. Mead, supra, and hence that the defendant's contention that the evidence was insufficient to justify his conviction upon this particular charge cannot be sustained.
The appellant's next contention is that the evidence is insufficient to sustain the charge in the indictment that the defendants threatened to do an unlawful injury to his person through an alleged threat "to incarcerate him in the *754
county jail." An examination of the record in this regard also fails to support this contention. The evidence abundantly shows that of the defendants charged jointly with extortion by this indictment, E.N. Sanders, the appellant herein, was, at the time of said alleged extortion, a police officer of the city of Los Angeles, as was also one of his codefendants, W.W. Swan; that of the other two defendants Lee Varain was an acquaintance of Quinlin, who, by reason of such acquaintanceship and pretended friendship, was made use of by his codefendants to aid in the accomplishment of said crime; that the other codefendant, Claude Morton, was the attorney of said Varain. These four defendants conspired together to extort money from Quinlin, whom they knew had money, which to the extent of $1,000 he usually carried upon his person; and whom they also knew to be vulnerable as having been, or suspected of being, engaged in questionable enterprises in respect to the sale of liquor. In pursuance of this conspiracy Sanders on the evening of August 19, 1919, accosted Quinlin as he was coming out of the hotel, telling him that he was an officer, that he, Quinlin, was under arrest. He had no warrant and Quinlin had committed no offense for which he could be legally arrested without a warrant. The defendant did not tell Quinlin at the time what he was under arrest for but took him to a tea room kept by Varain, where they were joined by Swan. The defendant indicated to Varain that he, Varain, was also to be arrested and that both were about to be taken to the county jail. Varain said he would like to visit his lawyer and the trio were then driven to the office of the defendant Morton, whom Varain first interviewed alone, while Quinlin and Sanders remained in the anteroom, and during which time Sanders told Quinlin that "he had plenty on him and that he had better get a thousand dollars." Presently Morton emerged and asked if he could see Varain and Quinlin alone and was allowed to do so and when they were together in Morton's inner office Varain began to play his part by pleading that he could not afford to be arrested again as he had one charge against him already. He thus succeeded in getting Quinlin to agree that Morton should act as the lawyer for both of them and go out and see if he could fix it with Sanders. He went outside and soon returned and reported that the *755
officer said he had "plenty on Quinlin and had different charges, shipping liquor into different states, dry territories"; whereupon Varian began to suggest giving money to fix the officer up to $500, to which Quinlan finally agreed; whereupon Morton again went outside and came back saying, "Well, if you will give him a thousand dollars apiece, you can both go to hell as far as he is concerned." Quinlin had only $320 on his person but was allowed to send a messenger to his wife for $250 more. While these proceedings were going on Swan again appeared on the scene with a bottle of whisky and they were all together in Morton's office when the final arrangements were made, by which Varain gave his check for $500 and Quinlin paid over to Morton $500 in money, agreeing to bring the other $500 to his office on the following day. Thereupon the parties separated. [4] Was the threat to incarcerate Quinlin in the county jail, uttered under the foregoing circumstances, a threat to do an unlawful injury to his person within the meaning of subdivision 1 of section
The judgment is affirmed.
Shaw, C. J., Wilbur, J., Waste, J., Sloane, J., Lawlor, J., and Shurtleff J., concurred. *759