STATE v. REINOEHL
No. 7509
Supreme Court of Idaho
Nov. 4, 1949
On Rehearing May 19, 1950
218 P.2d 865
Assignment of error No. 9 merely reiterates appellants’ contention that all the findings of fact and conclusions of law were against the weight of the evidence.
The judgment of the trial court is affirmed. Costs awarded to respondents.
HOLDEN, C. J., and GIVENS, TAYLOR and KEETON, JJ., concur.
Robert E. Smylie, Attorney General, J. R. Smead, Asst. Atty. Gen., E. M. Sweeley, Twin Falls, Graydon W. Smith, Twin Falls, for respondent.
Appellant was prosecuted and convicted under an information charging attempted extortion as follows:
“That the said Orville Reinoehl at and in the County of Twin Falls, and State of Idaho, and on or about the 13th day of September, 1948, did then and there wilfully, unlawfully and feloniously attempt to extort $1,000 lawful money of the United States from one O. A. Rambo, in that he, the said Orville Reinoehl, feloniously intending to extort the said money by obtaining the consent of the said O. A. Rambo to the payment thereof by fear, induced by the threat of the said Orville Reinoehl that unless the said money was paid to him, the City Council of the City of Twin Falls would on September 13, 1948, without cause revoke all slot machine licenses issued by the said City to the said O. A. Rambo for slot machines operated in his place of business in the said City, and thereby cause him great financial loss, did then and there intentionally, unlawfully and feloniously for the purpose of carrying out and completing the said attempt to extort the said money from the said O. A. Rambo, make the said threat verbally to the said O. A. Rambo and did thereby, so far as he the said Orville Reinoehl knew, succeed in obtaining, and did intentionally, unlawfully and feloniously so obtain, receive and take $1,000 in lawful money of the United States from the said O. A. Rambo, he the said Orville Reinoehl believing and acting on the belief that the payment of the said money by the said O. A. Rambo was by him consented to and made because of fear of the injury to his business induced by the said threat, but that, unknown to the defendant, the said O. A. Rambo consented to make and did make the said payment for the purpose of allowing the defendant to complete and carry out his said felonious intent to so obtain the said money, and to succeed in obtaining and taking the same so that he might be prevented or intercepted in the perpetration of the said extortion.”
Appellant’s assignments of error all raise but one point, and that is that an attempt to extort money or property from another by a verbal threat is a misdemeanor and punishable as such only under
“The law has declared * * * many actions to be misdemeanors where the purpose of the offender was not consummated, although, if consummated, it would have been only offense of this grade.” Lamb v. State, 67 Md. 524, 10 A. 208, at page 209.
“In some cases acts preparatory to the commission of a crime are themselves a crime and indictable as such and not as an attempt to commit the crime. Decisions based upon the doing of such acts, as constitute a substantial crime in themselves, should be distinguished from those decisions which hold certain acts to be crimes only on the ground that they are attempts to commit crimes. As examples of cases where the doing of certain preliminary acts which look to the commission of certain crimes are regarded per se as indictable, as substantive crimes and not property as attempts to commit the future crime contemplated, I may refer to the carrying of concealed weapons. Whether or not carried with the specific purpose of being used to assail a particular individual, this is a substantive crime and should be indicted as in itself a crime and not as an attempt to commit a crime, even though they were carried with the specific intent of assailing a certain person. So the procuring of dies wherewith to counterfeit is an indictable offense per se, and should be indicted as an independent misdemeanor and not as an attempt to counterfeit. It is on this ground that the conclusion reached in Rex v. Roberts, 33 Eng. Law & Eq. 553 (Dears, 539) can be sustained.” State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66, at page 70. State v. Bowers, 35 S.C. 262, 14 S.E. 488, 15 L.R.A. 199, 28 Am. St. Rep. 847, at page 849; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. Rep. 891.
It was unnecessary for the Legislature to provide in the Chapter on extortion, for attempted extortion, since that was already provided for in the general Section,
The sentence pronounced in this case of not more than two and a half years is in accordance with
Judgment is, therefore, affirmed.
On Rehearing.
KEETON, Justice.
Appellant was by order of the probate court of Twin Falls County, after preliminary hearing, held to answer for “attempted extortion, a felony”, and thereafter was informed against in the district court for feloniously attempting by verbal threats to extort $1000.00 lawful money of the United States from one A. O. Rambo.
Conviction was sustained on appeal by a decision released under date of November 4, 1949. Thereafter a rehearing was granted, and questions argued were by the court re-examined.
Prior to the trial of the appellant in the district court, a motion to quash the information as amended and a demurrer to the same on numerous grounds were by the trial court overruled.
The appellant assigns numerous alleged errors, only one of which will be discussed.
The appellant contends that he was held to answer and charged with attempted extortion by verbal threats as defined by
The code,
We can see no distinction between an attempt and an unsuccessful attempt. If
In other words, unsuccessful attempt to commit extortion by means of a verbal threat would in the absence of
In the case of Ex parte Raye, 63 Cal. 491, the defendant was convicted under this section, prior to amendment, in the police court of Sacramento, having been charged with attempted extortion by means of verbal threats. The Supreme Court of California held that the offense was a misdemeanor and upheld the sentence covered by the misdemeanor statute.
In the case of State v. Prince, 75 Utah 205, 284 P. 108, the court held that had the crime not been completed, that is, if only an attempt had been made, the crime itself would be a misdemeanor punishable under a similar statute as the Idaho statute.
In the opinion the court quotes a section of the statute reading the same as the Idaho statute, and upholds an instruction advising the jury that the defendant could be convicted of an attempt to commit extortion and specifically holds that if unsuccessful, would be a misdemeanor.
“Attempt” is defined by Webster’s New International Dictionary as an unsuccessful effort. In legal significance attempt means failure to consummate.
Where the law itself defines the crime and also fixes a penalty for the attempt to commit such crime,
This court has held that the district court cannot acquire jurisdiction of a misdemeanor, which is within the jurisdiction of the justice court, through the process of preliminary examination and information of the prosecuting attorney. State v. Raaf, 16 Idaho 411, 101 P. 747. We adhere to this rule. In this case, however, the complaint in the probate court and the information in the district court purport to charge a felony under
In State v. Garde, 69 Idaho 209, 205 P.2d 504, the question here present was not raised. On the second appeal, State v. Garde, Idaho, 212 P.2d 655, the order for imposition of sentence for misdemeanor was held to be the law of the case. So neither that case nor this is to be regarded as in conflict with State v. Raaf, supra.
The judgment is modified by vacating the sentence for a felony. And the cause is remanded to the trial court with directions to impose sentence for a misdemeanor.
TAYLOR, J., and SUTTON, District Judge, concur.
GIVENS, Justice (dissenting).
The substance of appellant’s attack, on rehearing, of the opinion is that
Of course, where the whole context of a statute or the clearly disclosed legislative intent requires, words may be disregarded as surplusage or interpolated and meanings changed or harmonized; but if a statute is not ambiguous, is clear and express in its provisions, it needs no interpretation; Moody v. State Highway Dept., 56 Idaho 21, at page 26, 48 P.2d 1108; State v. Prince, 64 Idaho 343, at page 349, 132 P.2d 146; State ex rel. Haworth v. Berntsen, 68 Idaho 539, 200 P.2d 1007, and the court may not change the meaning of or disregard the language used. State ex rel. Anderson v. Rayner, 60 Idaho 706, at page 713, 96 P.2d 244.
Appellant does not meet, refute or distinguish the authorities cited in the opinion that the legislature may legitimately recognize the distinction between and make each a separate offense, i. e., attempt and unsuccessful attempt.
We do not mean to foreclose ourselves from holding that attempt may not encompass an unsuccessful attempt, but we do appreciate and hold the Legislature may and has by
These additional authorities support our analysis of the statutes; that a distinction may logically exist between attempts and lesser activities amounting to independent offenses of unsuccessful attempts:
State v. Butler, 8 Wash. 194, 35 P. 1093, 25 L.R.A. 434, 40 Am. St. Rep. 900; State v. Schleifer, 99 Conn. 432, 121 A. 805, 35 A.L.R. 952 and annotation 961; State v. Beckwith, 135 Me. 423, 198 A. 739; Commonwealth v. Wiswesser, 134 Pa. Super. 488, 3 A.2d 983; Wiseman v. Commonwealth, 143 Va. 631, 130 S.E. 249; Smith v. Commonwealth, 54 Pa. 209, 93 Am. Dec. 686; State v. Hudon, 103 Vt. 17, 151 A. 562; People v. Chase, 117 Cal. App. Supp. 775, 1 P.2d 60, emphasizing “successfully” as differentiated from “prevail upon.” “It (the legislature) is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. As has been said, it may ‘proceed cautiously, step by step,’ and ‘if an evil is specially experienced in a particular branch of business’ it is not necessary that the prohibition ‘should be couched in all-embracing terms.’” People v. Philbin, 50 Cal. App. 2d Supp. 859, 123 P.2d 159 at page 161.
Attempts may include unsuccessful attempts, but an unsuccessful attempt may be less than attempt and if as here provided, may be made a distinct and separate offense by the legislature. “The section does not punish one who tries and fails to commit a more serious offense.” United States v. Miro, 2 Cir., 60 F.2d 58, at page 60. See also State v. Armijo, 19 N.M. 345, 142 P. 1126; People v. Miller, 2 Cal. 2d 527, 42 P.2d 308, 98 A.L.R. 913.
Though somewhat in reverse, Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418, clearly recognizes and makes the distinction, which is controlling herein, i. e., between attempt and less than an attempt.
Such distinction being thus logical, real and tangible, the Legislature certainly may
The judgment should be affirmed.
HOLDEN, C. J., concurs in this dissent.