153 Iowa 37 | Iowa | 1911
Defendant was indicted for the crime defined in section 4767 of the Code, which reads as follows: “If any person, either verbally or by any written or printed communication, maliciously threaten to accuse another of a crime or offense, or to do any injury to the person or property of another, with intent to extort any money or pecuniary advantage whatever, or to compel the person so
The charging part of the indictment is as follows: “The said O. P. Browning, K. B. McKee, A. W. Bice, on or about the 14th day of August, A. D. 1910, in the county of Polk, in the state of Iowa, did willfully, unlawfully, maliciously, and feloniously threaten to do injury to the person of Predia Oassman and Jacob Oassman, by threatening to forcefully arrest and place in jail the said Predia Oassman and Jacob Oassman, with the intent then and there on the part of O. P. Browning, B. B. McKee, and A. W. Bice, to extort money from the said Fredia Oassman and Jacob Oassman aforesaid.”
It seems to cover all the elements of the offense as described in the statute. It alleges that the said defendant maliciously and unlawfully threatened to do injury to the persons of others, naming them, by threatening to forcefully arrest them and to put them in jail, with the intent on the part of the defendants to extort money from them against their wills. It does not allege that the threats were verbal; but this is the fair inference from the indictment and sufficiently appears from the language used.
The witnesses in this case did not object to the form of oath, and each stated that it was binding on his conscience. This was. sufficient, although he might- perhaps have regarded another form as more solemn, or more binding upon him, than the oath taken. In such cases the law does not deal with comparisons, but is satisfied if the witness regards the oath as binding upon his conscience. Doss v. Bicks, 11 Humph. (Tenn.) 431.
6 Maliciousthreats: evidence. III. The state was permitted to show, over defendant’s objection, that Mrs. Cassman was sick at the time it is claimed the threats were made, and also to show the number and ages of the children of Mr. and Mrs. Cassman. In view of the developments x upon the trial, we are constrained to hold these matters material and competent. It is claimed, at least inferentially, that the Cassmans were running a house of ill fame, that Mrs. Cassman had offered herself for
But, even if this were not so, no such prejudice resulted to defendant as would justify a reversal. Some other rulings on the admission and rejection of testimony are com-plained of which we do not regard as of sufficient moment to justify separate consideration. It is enough to say that no prejudicial error appears.
IY. Many complaints are made of the charge as given by the trial court, and it is most strenuously argued that the testimony is insufficient to justify the verdict. In this connection it is argued that defendant’s offense, if any, was bribery. As to this latter claim more hereafter.
The instructions most vigorously complained of read as follows:
(6) You are further instructed that the ‘offense,’ as defined by law and as charged in the indictment, is complete if malicious threats were made, as charged in the indictment, to the persons named therein, to wit, Bredia Cassman and Jacob Cassman with intent to extort money or to Compel the persons so threatened to do an act against their will whether the person so threatened gave any money or not.
(I) You are instructed that under the law where a conspiracy is once established, and until the completion and consummation of. the object in view, if the conspiracy lasts that long, every act and declaration of one consiprator in pursuance of the original concerted plan, done and in reference to any furtherance of the common object even in the absence of the other conspirator, is in contemplation of the law the act and declaration of them all, and is therefore evidence against each, and all' are deemed to assent, to or commend what is said or done by any of them in furtherance of the common object of the conspiracy.
In this case the court has admitted testimony as to the act and declarations of persons whom the state claims were coconspirators. Some of these acts and declarations were done and made not in the presence of the defendant.
You are further instructed that a 'conspiracy is a combination between two or more persons by concert of action to accomplish some criminal or unlawful purpose, or some lawful purpose by a criminal or unlawful means. A conspiracy is complete when the conspirators enter into the agreement, and it is immaterial whether the agreement has been carried out or not.
You will carefully inquire and determine whether it is proven that a conspiracy existed between the defendant, O. P. Browning, and R. B. McKee and W. A. Rice, or either of them, and. in so considering you are entitled to take into account all the evidence showing when and where and under what circumstances the defendant and said McKee and Rice or either of them were together, what was said by and between the said parties at the time or times they were together, if you find the fact so to be, and if you find the evidence that the defendant, Browning, and said McKee and Rice, or either of them, did so conspire, then you may consider the declarations and statements of the said McKee and Rice or either of them, if any were made, during the existence of such conspiracy in pursuance of or in furtherance of such conspiracy, in the absence of said defendant, Browning, as bearing upon the guilt or innocence of the said defendant, Browning; but, if such conspiracy is not proven, then you must not consider any statements, acts, or declaration of the said McKee and Rice, or either of them, not made or done in the presence of' the said • defendant, Browning. ...
(9) A statute of this state defines an 'arrest’ to be the taking of a person into custody when and in the manner authorized by law and may be made at any time of any day or night. It is also provided that an arrest may be made by a peace officer or by a private person. It is further provided that a peace officer may make an arrest in obedience to a warrant delivered to him, and without a warrant
You are further instructed that the following persons are defined and designated by the statute as peace officers: First, sheriffs and their deputies; second, constables; and, third, marshals and policemen of cities and towns. A statute of this state further provides that a mayor of a city may in cases of emergency appoint such a number of special policemen as he may think proper, reporting such special appointment to the council at its next regular meeting, all such special appointments to continue in force until such meeting unless sooner terminated by the mayor.
Another statute of this state relative to search warrants and proceedings thereon defines a search warrant as an order in writing in the name of the state signed by a magistrate directed to a peace officer commanding him to search for personal property and bring it before the magistrate. It is further provided 'by statute that a search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer upon his requisition; he being present and acting in its execution.
Evidence has been introduced upon the trial of this case relative to the authority under which the defendant, Browning, acted at or about the time that it is alleged the malicious threats to extort took place. You are instructed that any evidence bearing upon the question of the authority of the defendant to act as a peace officer and in the execution of the service of the alleged search warrant at 319 East Fifth street, city of Des Moines, Polk county, Iowa, at the time and place in question, is to be considered by you as bearing upon the intent with which the defendant acted as substantially charged in the indictment, if you find he did so act, and for no other purpose.
You are instructed that as a matter of law the said
In this connection the trial court was asked to give the following:
No. 1. The court instructs the jury that the only crime charged in this indictment is that of malicious threat to extort money, and that if from the evidence you believe that the defendant, O. P. Browning, did not have the specific intent to extort money from Jacob Cassman and Fredia Cassman, or either of them, then it is your duty to find this defendant not guilty of the crime charged in this indictment, notwithstanding that the motive and intent under which he did act at the time he made said arrest may have been reprehensible. . . .
No. 3. You are instructed that the threat to extort money must have been a malicious threat, and that malice is an evil disposition of the mind manifest in one of two ways: First, by personal hatred or ill will toward another; and, second, by a reckless and wanton disregard for the rights of others. And that if from the evidence you believe that when the defendant, O. P. Browning, arrested Jacob Cassman and Fredia Cassman, or either of them, he did so under the honest belief that the said Jacob Cassman and Fredia Cassman, or either of .them, were conducting a house of prostitution or a disorderly house, then he was justified in making said arrest, and you must find he acted without malice within the-meaning of the law.
No. 5. You are further instructed that a peace officer may make an arrest in obedience to a warrant delivered to him, and without a warrant for a public offense committed or attempted in his presence, or where a public offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.
8. Same proff ofof conspiracy: instruction.
The instruction relating to conspiracy, No. 7, was not improper.- There was ample testimony to justify reference to the subject, and it was not necessary that a conspiracy be alleged in the indict-x ^ # ment. Proof of a conspiracy was proper m order to hold defendant for the acts done by any of his codefendants or the other persons who may have acted with him.
The language of the latter part of the instructions is criticised because it is said that a jury might thereunder have found a conspiracy between .McKee and Bice, defendant not being a party thereto, and yet by the language of the instruction held for anything either Bice or McKee mqy
Counsel’s contention that a conspiracy is not defined is met by a reading of the instruction itself.
But in Foster v. Clinton Co., 51 Iowa, 544, and Twinam v. Lucas Co., 104 Iowa, 231, opinions were filed which tend to support the position taken by the trial court. In the first ease it was held that a special constable was not a peace officer, and in Twinam v. Lucas Co. it was held that a deputy marshal was not a peace officer in such a sense that he was entitled to compensation from the county for his services. In the opinion it is said: “The statutes do not define the duties of deputy marshals, nor do they fix their compensation. It may be assumed, however, that his duties are the same as those of the marshal. Abrams v. Ervin, 9 Iowa, 87. The marshal is a peace officer, and it is his right, as well as his duty, to arrest vagrants. This his deputy might also do, in the absence of any showing to the contrary.” But it was further held that a deputy mar-* shal was not a peace officer as that term is used in section
Section 652 of the Code provides, in substance, that the mayor of a city may in cases of emergency appoint such number of special policemen as he may think proper, reporting such appointment to the city council at its next regular meeting, and that such appointment shall continue in force until such meeting unless sooner terminated by the mayor. Pursuant to this section the mayor made the following appointment of the defendant:
Appointment of Special Police. Mayor’s Office, City of Des Moines, Polk County, Iowa. Des Moines, Iowa, July 6, 1910. On application Chief of Police -, O. P. Browning is hereby appointed a special policeman at Des Moines and directed to report to the city marshal for instructions. The said C. P. Browning is to make no charge, nor is he to receive any compensation whatever from the city of Des Moines for service under this appointment. This appointment may be revoked any time at the will of the -mayor. James B. Hanna, Mayor.
There is no other showing of revocation of this -appointment than the following written across the face of the paper: Canceled by Mayor, October 27, 1910.
The times of meeting of the'council of the city of Des Moines arc not shown, and, if any inferences are to be made, they are that the appointment continued until canceled. There was also introduced in evidence a number of search warrants issued by one Conroy, a justice of the peace in and for Polk county, dated on the 12th and 13th days of August, 1910, and addressed to any peace officer of the state. None of these described Cassman’s place, however, nor is there any return showing service of any by a search of that place. One of these warrants, which described a place nearest to the one occupied by Cassman, was returned by defendant as a special policeman “not served.” So that in no event is it material to determine whether or
The only power a peace officer has which is not possessed by a private person is that a peace officer may arrest where any public offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it, while a private person can only arrest in such cases where the offense is a felony. A “felony” in this state is an offense which is or may be punished by imprisonment in the penitentiary. Now under the testimony the only offense which the Oassmans or either of them was guilty of was adultery, which is a felony, or the keeping of a house of ill fame, which is also a felony. Even if the offense of Oassmans were prostitution, that, too, was a felony. The trial court in effect so instructed and properly told the jury that this was a collateral matter which might throw light upon the intent with which the defendant acted. There was no error in the ninth instruction prejudicial to the defendant, and it follows that the court did not err in giving the instructions asked by defendant in so far as they announce rules contrary to those already expressed.
But that one with authority to make an arrest may be guilty of threats to extort, even though an arrest is finally made, is equally clear. The arrest in such cases may be a part of the scheme to extort. Com. v. Murphy, 12 Allen (Mass.) 449. Much depends, of course, upon the facts of each particular case. If an officer whose duty it is to make an arrest suggests that for a price he will not make an arrest, as in State v. Pierce, supra, the offense is not the making of malicious threats to extort money, but an offer to accept a bribe. But if one threatens to accuse another of crime unless he pays a sum of money, or does something else against his will for the purpose of extortion, this is a malicious threat, although it be followed by an arrest. But if one, after having arrested another, offers to release him upon the payment of money or upon the doing of some other thing, this is not the crime of making malicious threats. These distinctions are plain, and the trial court pointed out the elements of the offense charged in its third, fourth, fifth, and sixth instructions, which are too long to be set out in this opinion. The distinctions we have attempted to draw were not set out in the charge as given by the court, but the defendant did not ask that any such instructions be given. The instruction as to arrest has already been quoted, and in other parts of the charge the necessary elements of the offense were properly defined.
Such are the broad outlines of the case. The defendants each and all deny that any demands were made upon the Cassmans. They say that they went to the house for the double purpose of searching it for intoxicating liquor, believing that the warrant then in Browning’s hands covered the place, and for the additional purpose of ascertaining whether or not the Cassmans were conducting a house of ill fame. There is enough in the testimony to justify the conclusion that all of the parties named were acting in conjunction, and that Bice was to make arrangements for entering the house and for such accommodations as would be proof indisputable that the house was a disorderly one, and that within a few minutes after he finally succeeded in gaining admission his associates should enter in the hope and belief that he would be found in a compromising position with some of the inmates. That he did gain admission and was in a suspicious situation with Mrs. Cassman when his associates entered is too clear for argument, and that he did pay Mrs. Cassman some money, the amount being in dispute, we have no doubt. We are also convinced that when his associates entered he demanded the return of the money on the theory-that he had had no consideration therefor. There was considerable parleying over this matter, and finally the Cassmans were arrested and eventually lodged in the county jail.
The sharp dispute is upon the proposition as -to whether or not defendant or any of his associates with whom he was acting demanded the return of the money paid by Bice or other sums and threatened that if they (the Cassmans) did