97 Wash. 587 | Wash. | 1917
Appellant was charged jointly with Edgar G. Mills with the crime of blackmail, and appeals from a separate trial and conviction.
The first question raised is the sufficiency of the information. The information is too long to set forth as a whole. It charges that the appellant and Edgar G. Mills, with the intent to extort and gain $24,000 from one Thompson, unlawfully and feloniously sought to compel Thompson to execute to appellant a ninety-nine year lease of certain real property owned by Thompson and sign other valuable papers under threats of accusing Thompson of assault, blackmail, seduction, larceny and other crimes, and with publishing a certain document in which Thompson is accused of these crimes in detail.
Our statute, Rem. Code, § 2613, thus defines blackmail:
“Every person who, with intent thereby to extort or gain any money or other property or to compel or induce another to make, subscribe, execute, alter or destroy any valuable security or instrument or writing affecting or intending to affect any cause of action or defense, or any property, or to influence the action of any public officer, or to do or abet or procure any illegal or wrongful act, shall threaten directly or indirectly—(1) To accuse any person of a crime; or (2) To do any injury to any person or to any property; or (3) To publish or connive at publishing any libel; or (4) To expose or impute to any person any deformity or disgrace; or (5) To expose any secret, shall be punished, etc.”
The information was clearly sufficient even to its disgusting detail, as was the evidence to sustain the information and conviction. The publication threatened was grossly libelous. The attempt to extort money or valuable property was plain.
Appellant’s main argument is addressed to three contentions: First, if appellant believed he was justly entitled
The next contention is error in permitting appellant’s co-defendant, Mills, to testify what he said to appellant when advising with him as to whether or not what was done could be done and escape criminal liability. Mills is a lawyer, and the main point is that his testimony was the unpermitted disclosure of a privileged communication between attorney and client. Mills has not yet been tried. So far as here disclosed, his part in the affair was to consult with Richards as to whether or not the contemplated act would be blackmail, assist in the preparation of the ninety-nine year lease, and to carry the demands, threats and libelous publication, consisting of forty-five typewritten pages roughly bound together, from Seattle to Thompson’s home on Lake Crescent and deliver it in person. On his cross-examination appellant was asked in regard to the brochure prepared by him and delivered by Mills: “Had you been advised as to the nature of this, whether it was blackmail or not?” No objection was made to the question, and witness answered: “If I was to gain nothing which did not belong to me I understood it would not b'e blackmail.” He further answered that this advice had been given him by Mills. The state called Mills in rebuttal
The second objection is that the conversation between Mills and appellant was a privileged communication between attorney and client. There was no privilege. The applicable rule is thus stated in 40 Cyc. 2373:
“The rule does not extend to communications respecting proposed infractions of the law, and so there is no privilege as to communications made in contemplation of the future commission of a crime, or perpetration of a fraud, in which, or in avoiding the consequences of which, the client asks the advice or assistance of the attorney. But communications in respect to an alleged crime or fraud, made after the act or transaction is finished, are privileged.”
The same rule is recognized in 10 Ency. of Evidence 303. In Hartness v. Brown, 21 Wash. 655, 59 Pac. 491, the same contention is disposed of with this language:
“The rule, however, is well settled that communications made to counsel in contemplation of fraud or a criminal act are not privileged.”
We offer no comment upon the part played by Mills in this transaction. It speaks for itself, and whoever reads this record may give it such name as he deems appropriate. The
The last assignment is directed to the instructions given, it being especially urged that the court improperly commented upon the facts. This contention is based upon certain holdings of the court embodied in the instructions, to the effect that the matter embraced within the brochure and the threat to publish was libelous; that the least which appellant demanded of Thompson was an instrument or writing intending to affect the title to property within the meaning of the statute, and that Thompson was under no obligation to execute the lease nor purchase the hotel stock as bearing upon the question as to whether or not the act charged against appellant, if committed, was, as defined by the statute, an attempt to extort or gain money or property. The interpretation to be given written instruments, whether the procedure is on the civil or criminal side of the court, is a matter of law for the court and not a matter of fact for the jury. It was not error for the court to tell the jury that the matter contained in the threatened publication was libelous, nor that the threat to publish was a threat to publish a libel. Neither was it error to comment upon the legal phase that Thompson was not bound in law to execute the lease nor purchase the stock. The court does not violate the inhibition against comment upon the facts in correctly defining a matter of law to the jury, nor in determining the issues to be submitted to the jury. All that the court said in effect to the jury was that the act of appellant, if committed, would be embraced within the definition of the statute, which is a question of law and not of fact. Neither is it a comment upon the facts for the court to state to the jury that there is no evidence to establish a legal duty, which was in effect what the court instructed the jury, when, as here, there is neither evidence nor contention that there was any such evidence. A defendant cannot be
Attention has been given to other assignments of error in which we find no merit.
The judgment is affirmed.
Ellis, C. J., Chadwick, Main, and Parker, JJ., concur.