66 So. 281 | Miss. | 1914
delivered the opinion of the court.
Omitting the formal part, the indictment presented by the grand jury of Sunflower county against appellee is in these words:
“That J. F. Eicks, late of the county aforesaid, on the 23d day of March, A. D. 1914, with force and arms, in the county aforesaid and within the jurisdiction of court,, unlawfully, knowingly, and feloiously did then and there make, send, and deliver to one W. B. Martin a certain written letter, in the words and figures following, to wit:
*14 “ ‘August 18,1913.
“ ‘Dr. W. B. Martin, Indianola, Mississippi — Dear Sir: I went up and found that you have cut and deadened quite a bit of my timber, and don’t think you had a right to do this. It seems, though, that you may have asked me to deaden this land. I think you have damaged me considerably. I don’t want to make this a personal matter. Let me have four hundred dollars and I will cancel our contract. I will say it is of no use to write about it, it is four hundred dollars or I will prosecute you criminally. You know that you got that money. Let me hear from you at once.
“ ‘J. F. Ricks.’
“By which said letter he, the said Ricks, did then and there unlawfully, knowingly, and feloniously threaten to accuse the said "W. B. Martin of crime, with the unlawful and feloious intent of him, the said Ricks, to extort from the said W. B. Martin the said sum of four hundred dollars in money, of the.value of four hundred dollars, of the personal property of the said W. B. Martin, against the peace and dignity of the state of Mississippi.”
To this indictment appellee interposed a demurrer, assigning the following grounds:
“First. Said indictment contains no allegation that the defendant threatened to accuse W. B. Martin of a crime of which he could be legally convicted and punished.
“Second. The indictment does not specify what crime the defendant threatened to accuse the said "W. B. Martin of having committed.
‘ ‘ Third. The indictment shows on its face that it is an honest effort on the part of a creditor to collect a debt, and shows no intent to extort money from the said W. B. Martin, but the letter shown in said indictment only demands a reasonable compensation for property of the defendant destroyed by the said Martin, which demand*15 is accompanied with a threat to prosecute the said Martin criminally.
“Fourth. Said indictment shows clearly that the said Martin is indebted to the said defendant in the sum of four hundred dollars for certain timber cut and deadened by the said Martin, and that-the object of the defendant in writing the letter set out in said indictment was merely to obtain payment of it, and the existence of such indebtedness is not negatived in said indictment.
“Fifth. Said indictment on its face shows that there is no intent on the part of the said defendant to extort from the said Martin money, or anything of value.
“Sixth. Said indictment alleges no crime known to the laws of the state of Mississippi.
“Seventh. Other causes to be assigned at the hearing hereof. ’ ’
The court sustained the demurrer, and the state appeals. The gist of the crime which the state sought to charge against appellee was the sending of a letter with the felonious intent to extort money. If it should be conceded that Dr. Martin was, in fact, guilty of unlawfully cutting or deadening the timber of appellee, and had thereby damaged appellee as alleged in the letter, does it follow that appellee is guilty of an attempt to rob by merely sending the letter demanding reparation, and threatening to prosecute unless reparation is made ? The crime with which the state intended to charge appellee is purely statutory, and of course the act charged must clearly fall within the terms of the statute.
The indictment was drawn under section 1364, Code ■of 1906, which we quote, viz.:
“Every person who shall knowingly send or deliver, ■or shall make, and, for the purpose of being sent or delivered, shall part with the possession of any letter or writing with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark, or «other designation, threatening therein to accuse any per*16 son of a crime or to do an injury to the person or property of any one, with a view or intent to extort or gain money or property of any description belonging to another, shall be guilty of an attempt to rob, and shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five years.”
The indictment does not aver that Dr. Martin did not cut appellee’s timber; it does not aver that Dr. Martin had not damaged appelee to the extent of four hundred dollars. We infer from the letter that appellee threatened to prosecute Martin if Martin did not pay for the damage done appellee. Appellee had a right to demand the payment of damages, if it be conceded that he had been damaged. It is not a violation of the statute in question to write a letter charging one with the commission of a crime, nor is it a violation of the statute to threaten to prosecute the person addressed for the crime charged. The statute makes an attempt to extort money by means of a written communication a felony, and defines the same as an attempt to rob.
The position of the state is that the mere sending of the letter threatening to prosecute if the money claimed be not paid constitutes the crime, and that it makes no difference whether the person to whom the letter is addressed justly owes the amount demanded or not. There is nothing in the indictment negativing the idea that appellee was demanding the payment of what he believed to be a just claim.
Construing the letter most favorably to the accused, it would seem that he was charging Dr. Martin with trespass which had damaged him to the amount demanded, and telling him that there was no use to write about it; that he would prosecute unless the amount demanded was paid. Can it be said that the threat to prosecute was made “with a view or intent to extort or gain money, etc.?” Is it an attempt to rob to demand by letter the return of stolen money, accompanied by a threat to prose-.
In Mann v. State, 47 Ohio St. 556, 26 N. E. 226, 11 L. R. A. 656, the court was construing a statute reading:
“Whoever verbally accuses any person of a crime punishable by law, with intent to extort or gain from such person any chattel, money or valuable security, or any pecuniary advantage whatever, shall be imprisoned in the penitentiary not more than five years nor less than one year, and may be fined not more than one thousand dollars.”
The court said:
“An honest effort on the part of a creditor to collect a just debt, by accusing or threatening to accuse the debtor of a crime with which the debt is connected, or out of which it arose, does not, in our opinion, come within the purview of the statute; nor should the statute be construed as covering the case of an owner who demands from the offender a reasonable compensation for property which he has maliciously and criminally destroyed, and accompanies his demand with a threat to accuse the offender of the crime.”
See, also, State v. Hammonds, 80 Ind. 80, 41 Am. Rep. 791; People v. Griffin, 2 Barb. (N. Y.) 427.
Affirmed.
