After careful consideration, I desire to state briefly my reasons for concurring in the decision of this court that the judgment in the above entitled cause should be reversed.
The pertinent portion of Rem. Comp. Stat., § 2610, reads as follows:
"Every person who . . . shall extort or gain any money, property or advantage . . . by means of . . . any threat, . . .
"(1) To accuse any person of a crime; . . .
"Shall be guilty of extortion and shall be punished by imprisonment in the state penitentiary for not more than five years."
Under the foregoing section, the crime of extortion is a felony punishable only by imprisonment in the state penitentiary. It follows that the statutory crime of extortion is a serious offense meriting condign punishment.
The crime of "oppression under color of office" is by the statute (§ 2611) made either a gross misdemeanor or a misdemeanor, and the crime "extortion by public *Page 374 officer" (§ 2612) is made a misdemeanor. By § 2613, the crime of "blackmail" is defined and made punishable by imprisonment in the state penitentiary for not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment. By § 2614, the crime of "coercion" is defined and made a misdemeanor. It is to be noted that accomplishment is an element of the crime of extortion, an unsuccessful attempt not falling within the definition.
It is apparent from comparison of the foregoing sections that in the opinion of the legislature the crime of extortion, of all the crimes hereinabove referred to, merited the most severe punishment. This becomes important in determining just what acts the legislature intended to include within its definition of the crime with which we are here concerned.
"The ordinary meaning of the word `extortion' is the taking or obtaining of anything from another by means of illegal compulsion or oppressive exaction." 25 C.J., p. 233, § 1.
The word "gain," which is used in the statute above quoted in connection with the word "extort," is, of course, in its general meaning, of much broader significance, but, in my opinion, does not enlarge the scope of the statute, and must be construed as synonymous with the word "extort."
Appellants were charged with the crime of extortion, the information alleging that they, with intent to extort and gain the sum of five thousand dollars, did verbally threaten to accuse Leland Frease of the crime of grand larceny, and that they, by means of such threats, did extort and gain from Frease the sum of four thousand dollars. *Page 375
At common law and under statutes declaratory thereof, in order to constitute extortion, the act must have been committed with a corrupt intent. 25 C.J., p. 238, § 15. In this authority, attention is called to the fact that it has been held that the fact that money was not taken for an officer's own use might be of evidential value as showing the absence of intent.
It seems to me clear that mala fides (either in word or act) is one of the bases of the crime of extortion, and that, in the absence of this element, the offense is not committed. In this connection, the following authorities, in addition to those referred to by the majority, are instructive.
The supreme court of Indiana, in the case of McMillen v.State, 60 Ind. 216, held that, in a prosecution for extortion, the defendant being charged with accusing one of having had sexual intercourse with the defendant's wife, and having by such accusation induced the person threatened to part with money and property against his will, the jury should have been instructed that, if they believed that the accusation was made in good faith by an injured party to obtain satisfaction for an injury really believed to have been inflicted, they should find that the accusation was not made for the purpose of extortion, and that they might find for for the defendant.
In the case of Commonwealth v. Coolidge, 128 Mass. 55, the court approved an instruction to the effect that a threat made by one whose goods had been stolen, to the effect that he would prosecute the suspect under certain circumstances, could not be considered as made with malice and intent to extort property unless there were other proofs of malice and intended extortion.
In the case last cited, the court quoted from the earlier case of Commonwealth v. Jones, 121 Mass. 57, 23 Am. Rep. 257, a prosecution for malicious threats *Page 376 to accuse one of a crime with the intent of extorting money, in which the court said:
"The evidence offered as to the truth of the accusation against Robinson might have had an important bearing upon the question of the defendant's intent, and should have been admitted. If Robinson had in fact made such an assault upon the defendant's wife, the defendant might lawfully demand reparation. If the wrong which he offered to prove had in fact been committed, the demand which the defendant made for payment may have been without the intent to extort money, necessary to constitute the crime alleged in the indictment."
See, also, State v. Bruce, 24 Me. 71.
In the case of Cohen v. State, 37 Tex. Cr. 118, 38 S.W. 1005, the court of criminal appeals of Texas, under a statute similar in principle to our own, held an indictment charging extortion defective for reasons not important here. In the course of its opinion, the court quoted from the Century Dictionary the definition of the word "extort," and concluded that, in defining the offense under which the defendant was being prosecuted, the statute used the word "extort" in its broader sense, and not as synonymous with the word "extortion" which, under the common law and according to law dictionaries, is applied to officers who, by color of office, etc., unlawfully take money. The court said that the statute should not be construed as applicable only to cases where no debt existed between the parties, but that, on the contrary, a party might be guilty of the offense of attempting to extort money, although the victim might be justly indebted to the offender.
In the course of its opinion, the court quotes with approval from the case of Mann v. State, 47 Ohio State 556 (the quotation being incorrectly attributed to the opinion in the case of Elliott v. State, 36 Ohio State 318) to the effect that the doctrine that one *Page 377 might be guilty of extortion in threatening one who was justly indebted to him is not inconsistent with the position that the truth of the accusation may become material, not as being in itself a complete defense, but as having a tendency to establish that the intent of the defendant was not to extort, but only to secure reasonable compensation (I would add in a reasonable manner) for property taken, or the payment of a just debt. With this doctrine, I am in accord. The appellant had written a letter which, it was contended, rendered him guilty of extortion. In the course of its opinion, the court says:
"In other words, the question for the jury to determine is whether or not the letter threatening a criminal prosecution was sent with the view of extorting money from the prosecutor. If the money was not due and owing at all, the sending of such a letter would be absolute proof of extortion; but, if a debt was due and owing by the prosecutor, the letter itself, under the environments under which it may have been written, might not have been written with the view of extorting money from the prosecutor — that is, by threatening him by letter with a criminal prosecution in order to obtain the money. And we believe in this case that the circumstances connected with sending the letter, and the truth of the matters therein contained, should have been admitted by the court, in order that the jury might correctly pass upon the question as to whether or not said letter was sent and delivered with the view of extorting money from the prosecutor."
In the case at bar, as stated in the opinion of the majority, the trial court permitted appellants to cross-examine respondent's witness Frease as to whether or not he had stolen certain property from his employer, only for the purpose of affecting the credibility of the witness and by way of impeachment, and instructed the jury that it was immaterial whether or not Frease *Page 378 had in fact stolen any property from his employer, or whether or not appellants believed that Frease was guilty of any such theft.
In my opinion, the question of the good or bad faith of appellants was important, as bearing upon their guilt or innocence of the crime with which they stood charged, and that, therefore, the court should have permitted them to introduce testimony to the effect that Frease had been guilty of stealing from his employer, and that they knew this. It is true that appellants might be guilty of the crime of extortion, even though Frease had stolen from his employer and appellants knew it, but nevertheless, the evidence above referred to was admissible, as bearing upon the guilt or innocence of appellants.
As to whether or not the law was, in all particulars, correctly expounded in the authorities above referred to, I express no opinion, but the cases throw some light upon the principles which seem to me to be here controlling.
It is inconceivable to me that the legislature could have intended to make one guilty of the crime of extortion and subject to the very severe penalties provided for in the statute, who does no more than demand return of his own property stolen from him, or the value thereof, under bare threat of the institution of a criminal proceeding against the thief. Such a threat may or may not amount to extortion — that is for the jury to determine; but, in my opinion, the trial court erred in rejecting evidence as to the actual facts concerning Frease's conduct, and in instructing the jury that it was immaterial whether or not Frease had stolen any property, or that appellants believed that Frease was guilty of such theft. The jury were entitled to know all the circumstances in connection with *Page 379 this phase of the case and consider them in determining whether or not appellants were guilty of the crime with which they stood charged.
TOLMAN, C.J., concurs with BEALS, J.