(after stating the facts as above). [1] 1. It is contended that the seventh count fails to charge a crime, because the statute fails to define extortion. Section 85 of the Criminal Code reads as follows:
“Every officer, clerk, agent, or employee of tlie United States, and every i>er-son representing himself to be or assuming to act as such officer, clerk, agent, or employee, who, under color of his office, clerkship, agency, or employment or under color of his pretended or assumed office, clerkship, agency, or employment, is guilty of extortion, and every person who shall attempt any act which if performed would make him guilty of extortion, shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both.”
Attention is called by defendant to sections 332 and 333 of the Criminal Code (Comp. St. §§ 10506, 10507), where the expression “an offense defined in any law of the United States” is used, and to section 340 (Comp. St. § 10514), which provides: “The crimes and offenses defined in this title shall be cognizable in the Circuit and District-Courts, * * * ” as prescribed in R. S. §§ 563, and 629 (Comp. St. § 991). Briefly stated, the argument is, first, that in any event the statute must define the crime of extortion; and, secondly, that under section 340, supra, the crime is not cognizable in the national courts, because not defined “in this title.”
An examination of the Criminal Code and of the Revised Statutes will show that, in a considerable number of instances, crimes denounced have not been defined. Some of these statutes, in substantially their present form, have been on the books for over or nearly a century. Thus R. S. § 5286 (Comp. St. § 10177), as to military expeditions against people at peace with the United States, had its origin in a statute of 1794; section 5368 (Comp. St. § 10463), as to piracy, in a statute at least as early as 1819; and the statute here under consideration (section 85), as to extortion, in a statute at least as early as 1825. “Steal,” for instance, is not defined in Criminal Code, §§ 36 and 47 (Com]). St. §§ 10200, 10214); nor “forge” in sections 27 and 30 (Comp. St. §§ 10191, 10194); nor “rob,” in section 46 (Comp. St. § 10213); and the illustrations could be multiplied.
Thus, by a long history of practical construction by the Eegislature and by the decisions of the courts, resort is had either to the common-law definitions of offenses of an ancient character or to the ordinary meaning of words or to both. Two noteworthy cases, each well worth reading and highly instructive, have settled the principle.
In United States v. Smith, 18 U. S. (5 Wheat.) 153, 5 L. Ed. 57, it appears that Smith was indicted for piracy committed in violation of the Act of March 3, 1819, § 5, 3 Stat. 513. That act provided “that if any person * * * shall, on the high seas, commit the crime of piracy, as defined by the law of nations, * * * ” he should be *916punished with death. The case was argued by Wirt for'the United States and Webster for defendant, and Mr. Justice Story delivered the opinion of the court. “The argument,” said Mr. Justice Story, “is that Congress is bound to define, in terms, the offense of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. * * *• ” After disposing of this argument, Mr. Justice Story continued :
“But supposing Congress were bound, in all tbe cases included in tbe clause under consideration to define tbe offense, still there is nothing which restricts it to a mere logical enumeration in detail, of all the facts constituting the offense. Congress may as well define, by using a term of a known and determinate meaning, as by an express enumeration of all the particulars included in that term. That is certain which is, by necessary reference, made certain. When the act of 1790 declares that any person who shall commit the crime of robbery or murder on the high seas shall be deemed a pirate, the crime is not less clearly ascertained than it would be by using the definitions of these terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where ‘malice aforethought’ is of the essence of the offense, even if the common-law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of ‘malice aforethought’ would remain to be gathered from the common law. There would then be no end to our difficulties, or our definitions, for each would involve some terms which might still require some new explanation.”
Considering next whether the crime of piracy was defined by the law of nations with reasonable certainty, Mr. Justice Story observed:
“What the law of nations on this subject is may be ascertained by consulting the works of jurists, writing professedly on public laws, or by the general usages and practice of nations, or by judicial decisions recognizing and enforcing that law. There is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature, and, whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery, or forcible depredations upon the sea, animo furandi, is piracy. The same doctrine is held by all the great writers on maritime law, in terms that admit of no reasonable doubt. The common law, too, recognizes and punishes piracy as an offense, not against its own municipal code, but as an offense against the law of nations (which is part of the common law), as an offense against the universal law of society, a pirate being deemed an enemy of the human race.”
After an exhaustive review of the authorities, it was concluded:
“So that, whether we advert to writers on the common law or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offense against the law of nations, and that its true definition by that law is robbery upon the sea.”
These quotations are extracted solely for convenience, although the opinion should be entirely read to appreciate its full value.
In Wiborg v. United States, 163 U. S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289, defendant, with others, was indicted for setting on foot a military expedition and enterprise against Cuba. The court was called upon, inter alia, to ascertain the meaning of “military expedition- or enterprise,” as used in R. S. § 5286, forbidding “any military expedition or enterprise” against any state or people at peace with the .United States. Mr. Chief Justice Fuller said :
*917“Tiie first and the main question in the present ease is whether the trial judge erred in his instructions to the jury in respect of, what constitutes a ‘military expedition or enterprise’ under the statute. The question is one of municipal law, and the writers on international law afford no controlling aid in its solution.”
The court then examined the definitions of lexicographers and laid down its definition.
Section 273 of the Criminal Code (Comp. St. § 10446) defines the crime of murder, but its predecessor, R. S- § 5339, did not. Lacombe, J., in charging a jury where defendant had been indicted under R. S. § 5339, said:
“But the statutes do not define the offense of murder. Therefore we must turn to the common law, as it was in England before the Revolution, and has been interpreted since by our courts, for a definition of that crime.” United States v. King (C. C.) 34 Fed. 302, 306.
To the same effect, Maxey, J., charged the jury in United States v. Lewis (C. C.) 111 Fed. 630, 632.
[2] Apparently, the first case under the statute as to extortion, of which there is a report, is United States v. Waitz (1876) 28 Fed. Cas, 386, No. 16,631. There, Hillyer, J., defined extortion, when charging a jury, as did Dick, J., in United States v. Deaver (D. C., 1882) 14 Fed. 595. Judge Thomson in the case at bar instructed the jury in an admirably clear and comprehensive charge. He defined extortion as follows:
“Extortion is the unlawful talcing by any officer under color of his office of any money or thing of value that is not due him, or more than is due, or before it is due.”
He thus adopted the classic definition of Blackstone. 4 Blackstone, Com. 141; also 1 Hawkins, P. C. 418; 25 C. J. 233. With this definition in mind, if the jury believed the witnesses for the prosecution, tbe crime of extortion, under section 85, was committed by defendant.
[3] 2. It is contended that defendant was induced to commit the crime charged, and that the government agents laid a trap for him. On the evidence, it appeared that the crime or arrangements were completed on November 16th, and that everything occurring thereafter was done properly and lawfully for the purpose and with the result of verifying Levy’s report to the Department of Justice as to the transactions of November 16th. Grimm v. United States, 156 U. S. 604, 610, 15 Sup. Ct. 470, 39 L. Ed. 550; United States v. Wight (D. C.) 38 Fed. 106, 111.
Under Criminal Code, § 117, the crime, inter alia, consists in asking for money or in promising to pay money with intent, etc. As the evidence shows, defendant asked for the money on November 16th, and in any event then agreed to pay the $30. Everything done thereafter was merely in furtherance of. a crime which had been completed on November 16th.
We have examined into the other assignments of error, but they do not present any questions calling for discussion.
Judgment affirmed.