State v. Stewart

90 Mo. 507 | Mo. | 1886

Nokton, C. J. —

The defendant was tried and convicted under an indictment charging him with sending a letter to one R. Gr. Lee, threatening to charge him with .stealing a flock of sheep, for the purpose of extorting money from him. It is claimed by counsel for defendant that the indictment is insufficient, and, therefore, the court erred in overruling his motion in arrest of judgment. The indictment is founded on section 1306, ■of the Revised Statutes:

“ Every person who shall knowingly send or deliver, or shall .make, and, for the purpose of being delivered or sent, shall part with the possession of any paper, 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 person of any crime or felony whatever, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property of any description belonging to another, shall, on conviction, be adjudged guilty of an attempt to rob, and shall be punished by imprisonment in the penitentiary not exceeding five years.”

The indictment in question contains four counts and ■sets forth with great particularity all the facts necessary to constitute the offence created by' the above section, and in this respect follows the language of the statute, .and is, therefore, sufficient. It does not, however, set forth, a copy of the letter alleged to have been written and sent, but only sets it forth according to its purport. It is insisted by counsel, that the failure to set forth the letter in haee verba renders the indictment bad. This ■contention would be well founded, but for the fact ‘ that it is provided by section 1816, Revised Statutes, as follows : “ In all other cases, whenever it shall be necessary to make any averment in an indictment as to any instrument, whether the same consists wholly or in part ■of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation, by which the same may be usually known, or by the purport thereof, without setting out any .copy or fac simile ■of the whole or any part thereof.” This section of the statute was before this court in the cases of State v. Fisher, 65 Mo. 437, and State v. Clinton, 67 Mo. 380, in one of which cases defendant was charged with the forgery of a deed, and in the other with the forgery of a note, and both indictments, which only set out the purport of the note and deed, were held to be valid. We cannot perceive any force in the argument of counsel, that the section above quoted is unconstitutional, in that it deprives defendant of his right to be informed of the nature and cause of the accusation against him. If the purport of the letter is correctly stated, he would be as fully informed of the nature of the charge against him as if set out in haec verba.

During the trial the following letter was received in evidence, it having been proved and admitted by defendant, to be the letter written by him and sent:

“New Florence, Mo., January 29, 1878.

u Mr. F. F. Lee,—

Dear Sir: It pains me to communicate this news to you — not only on your own account, but on your wife’s and your aged father’s and mother’s, and your highly respected family at large. My wife lost a flock of sheep before our marriage, and since that time I have made it my business to ferret out the matter, if possible, and find out who was the perpetrator of the crime, and it now appears, on the statement of a respectable citizen, that you are the man. Now, Mr. Lee, I don’t wish to bring you into trouble, nor your family into disgrace, so you had better come forward and settle the matter at once and delay further trouble, as I do not wish to make the matter public; and if you will do so, we will be easy with you; otherwise, we will prosecute you to the end of the law.

“Respectfully,

“A. B. Stewart.”

This letter was objected to on the ground that it was not fully set out in the indictment, and because the purport of it was not correctly stated therein. The first ground of objection has already been disposed of in passing on the validity of the indictment, and, as to the second ground, it is not well taken, inasmuch as the purport of the letter is fairly and correctly averred in the indictment. There is no variance between the letter" itself and the purport of it as alleged in the indictment. It is further objected that the court erred in instructing the jury that, if they believed defendant sent the letter in evidence to Randolph E. Lee, threatening therein to. accuse said Lee of the crime of feloniously stealing, taking and carrying away a flock of sheep belonging to defendant’s wife before her marriage with defendant, and that he so sent said letter with the intent to extort or gain any money or property of any description belonging to said Lee, they would find him guilty, etc.

In the second instruction the jury are told that, if “they believed, from the language of the letter and all other circumstances proved in the case, that defendant intended to threaten to accuse said Lee before any third person of persons with the crime of feloniously stealing,, taking and carrying away a flock of sheep belonging to his wife before her marriage with defendant, and that defendant so threatened for the purpose of extorting or gaining money from said Lee, and if they further believe such intent is expressed in said letter, then the jury should find him guilty, and it is wholly immaterial what words or language were used in said letter, if you believe from the evidence that such was the intent, and that such intent would be reasonably gathered and so understood by said Lee or other persons from said letter.” These instructions are objected to on the ground that the court should have construed the letter, and not have left the determination of the question whether the letter contained a threat, and the intent with which it was made, to the jury. Conceding the correctness of the rule contended for, the error complained of is not a reversible error, for the reason that it was an error in defendant’s f avot, and the further reason that it was carried into the instructions asked for by defendant and given by the court. Besides this, there is a class of cases referred to by the case of State v. Linthicum, 68 Mo. 66, to which the rule does not apply, where defendant was indicted for sending a threatening letter, and it was held that whether it contained the threat alleged was a question for the jury.

It is claimed that, as there are several counts in the indictment, and that, as the verdict is a general one, the motion for new trial ought to have been sustained. This objection is answered by the case of the State v. Core, 70 Mo. 491, and the cases there cited.

We perceive no error in the record justifying an interference with' the judgment, and it is hereby affirmed.

All concur.