Schultz v. State

The following opinion was filed January 8, 1908:

EnRwirr, J.

Several errors are discussed in the briefs of counsel, and such of them as are regarded necessary to be treated will be considered.

1. At the opening of the trial defendant moved the court to require the state to elect upon which branch of the indictment it would prosecute, and the denial of this motion is assigned as error. This error is claimed upon the. ground that the indictment sets forth several separate offenses not properly joinable. The objection is not very strenuously urged by counsel for defendant, and we think it untenable and regard it unnecessary to consider it in detail. The indictment contains but one count, though several violations of the statute are alleged in the conjunctive; hence the motion to compel the state to elect was properly denied.

2. The main contention of counsel for defendant is’that the indictment charged no offense, that it was error to allow an amendment of it, and that the evidence is insufficient to sustain the charge laid in the indictment. The indictment, in addition to the formal parts, alleged in apt words covering the language of the statute that the defendant feloni-ously, knowingly, unlawfully, and maliciously did verbally threaten the said Strauss that defendant would accuse him of having committed the crime of bribery by accepting from the Allen’s Cornice & Corrugating Works a large sum of money, and setting forth the facts1 in relation thereto and the threat made, and further by verbal threats maliciously threatened to wrongfully injure the person, property, business, and calling of said Strauss, and to injure, damage, and ■destroy the business of said Strauss and prevent him from successfully carrying on his business and to cause delay and ruin to the same, in consequence of which threats and for the purpose of preventing the carrying out of the same Strauss did, against his will, pay $50 to defendant, which was corruptly and extorsively demanded. We have only stated briefly such part of the indictment as will make clear the points of attack upon it. In order to determine the sufficiency and scope of the indictment consideration of the statute upon which it is based will be necessary. This statute is violated by maliciously threatening verbally or in writing to accuse another of any crime or offense, or by maliciously threatening verbally or in writing any injury to the person, property, business, or calling of another, with intent to extort money or any pecuniary advantage, or with intent to compel the person so threatened to do any act against his will or omit to do> any lawful act. The threats may be classified under two1 heads, namely: Eirst, a threat to accuse of a crime or offense; and, second, a threat to do an injury to the person, property, business, calling or trade, or profits and income of any business, profession, calling, or trade of another. These threats must be, by the terms, of the statute, ;with intent to extort money or pecuniary advantage or to compel the person so threatened to do an act against his will or omit to do a lawful act. The threat set out in the indictment and hereinbefore referred to is the only threat proved, and the question arises whether it constitutes an offense under the statute. The court below held that it was not sufficient to charge an offense under the first classification above stated, namely, a threat to accuse of a crime or offense, on the ground that such a threat to accuse must be a threat “to charge with an offense judicially or by public process.” Whether the court was right in so charging the jury is a very grave question, and one upon which we express no opinion, since we do not regard the question before us. The case was submitted to the jury upon the second subdivision of the indictment, namely, a threat to- do an injury to the person, property, business, or calling of Strauss; and if the conviction stands it must be because the indictment •sufficiently charged and the evidence proved such an offense, since the charge of threat to accuse of - a crime or offense was taken from the jury. So the question is whether the threat set out in the indictment and proved is sufficient to support the conviction under the charge. Is it a threat to do an injury to the person, property, business, or calling of Strauss within the meaning of the statute? We think it clear that it is not. Criminal statutes of this nature must have a reasonably strict construction, and cannot be extended by construction beyond their plain terms. State v. Benedict, 11 Vt. 236; Sively v. State, 44 Tex. 274; People v. Choynshi, 95 Cal. 640, 30 Pac. 791; Niezorawski v. State, 131 Wis. 166, 111 N. W. 250. It is obvious that such was the intention of the legislature from the various statutes passed from time to time covering offenses of this character which specifically define the things denounced. Surely it cannot be-said that the second subdivision of the statute under consideration includes a threat to defame, since not covered by the words of the statute. Sec. 4466a, Stats. (1898); 6 & I Viet. c. 96, § 3; Reg. v. Yates, 6 Cox C. C. 441; State McCabe, 135 Mo. 450, 37 S. W. 123.

Our own statutes malee manifest this legislative intention, namely, that the thing denounced should be covered in express words by the statute and not left to inference: Sec. 4466a, Stats. (1898), makes it an offense for two or more-persons to combine for the purpose of maliciously injuring-another in his- “reputation, trade, business, or profession.” jSTumerous other statutes respecting threats and combinations-exist in this state, all going to show legislative intention to' specifically define the thing denounced. So, coming to the-particular part of the statute under consideration, we think it clear that it was not intended to cover injury to reputation because not so expressed therein. State v. Barr, 28 Mo. App. 84; Comm. v. Mosby, 163 Mass. 291, 39 N. E. 1030. Row,, it seems clear that the threat alleged in the indictment and proved on the trial, namely, to- put a line or two in the paper and accuse Strauss of a corrupt agreement of bribery, cannot by any rule of construction be said to- be a threat to do an injury to the person, property, business, or calling of Strauss. It might be said to- be a threat to injure his reputation, but injury to reputation is not covered by this part of the statute-under which the prosecution is sought to- be sustained. In re McCabe, 29 Mont. 28, 73 Pac. 1106; Gianfortone v. New Orleans, 61 Fed. 64; Ætna Ins. Co. v. Comm. 106 Ky. 864, 45 L. R. A. 355. The.mere fact that some injury to the property, business, trade, or calling of Strauss might incidentally result from the accusation is not sufficient under the rule of construction governing such statutes. The threat must be a direct threat to injure the person or particular thing specified in the statute, and it has been held that an “injury to the person” under such a statute means a physical injury. Williamson v. State, 2 Ohio O. C. 292; Comm. v. Mosby, 163 Mass. 291, 39 N. E. 1030. As we understand counsel for the state, it is claimed that the statute in question makes it a crime to threaten to compel against the will the doing of any act or to threaten to compel the omission to do. any lawful act. _ We do not so understand the statute. We think the gist of the offense under this statute is the threat to accuse another of any crime or offense or to threaten to do an injury to' the person, property, business, profession, calling, or trade with intent to extort money or any pecuniary advantage, or with intent to compel the person so threatened to do any act against his will or omit to do any lawful act; the intent to extort money or pecuniary advantage or compel the person so threatened to do an act against his will or omit to do a lawful act being a mere incident to the threat and dependent upon it, and, where there is no such threat as contemplated by the statute alleged or proved, no offense under this statute is established.

Counsel for the state further insists that the question of a threat to accuse Strauss of a crime or offense was not taken from the jury, and that the charge, of the court to the effect that such accusation must be judicially or by public process was erroneous, and it being favorable to the accused cannot be .taken advantage of by the defendant to reverse a verdict of guilty; that although the instruction was incorrect it was highly favorable to the defendant and prejudicial to the state. While we might have great difficulty in disturbing the judgment if the whole indictment were passed upon by the jury and the defendant found guilty thereon, we cannot see how it can be said that defendant was convicted of maliciously threatening to accuse Strauss of a crime or offense, since that question was expressly taken from the jury by the charge, and the jury doubtless found the defendant guilty not of a threat to accuse of a crime or offense, but of a threat to do an injury to the person, property, business, or calling of Strauss. The defendant, of course, was entitled to the verdict of a jury upon the particular offense of which he 'was convicted, and we cannot say upon the record before us that the jury convicted the defendant upon the portion of the charge in the indictment expressly taken from them by the court. So we are compelled to hold that the conviction was based upon that part of the indictment purporting to charge a threat to injure the person, property, business, or calling of Strauss, and that a threat to accuse of bribery is not a threat to injure the person, property, business, or calling of the person accused within the meaning of the statute under consideration.

3. It is further insisted that the court erred in allowing the indictment to -be amended by striking out the words “the 30th December in the year 1902,” and inserting in lieu thereof “the 30th of December in the year 1901,” and by striking out “the third day of January, 1903,” and inserting “the 30th day of December, 1901,” and by striking out the words “Strauss was engaged in the liquor and restaurant business,” and inserting in lieu thereof the words “painting business.” We think the amendment was clearly justified by the various provisions of our statute with reference to amendments, and particularly because the amendment did not change the indictment in substance and the defendant was not prejudiced thereby. Niezorawski v. State, 131 Wis. 166, 111 N. W. 250; Murphy v. State, 131 Wis. 420, 111 N. W. 511; Ullman v. State, 124 Wis. 602, 103 N. W. 6; Schultz v. State, 133 Wis. 428, 113 N. W. 428.

Other errors discussed need not be considered, since the questions involved are not likely to arise in case there should be another trial. Eor the reasons stated the court is of the opinion that the judgment must be reversed.

By the Court. — The judgment of the court below is re-vei’sed, and the cause remanded for further proceedings according to law.

A motion by the state for .a rehearing was granted on March 10, 1908, and the canse was reargued as to certain questions on April 22, 1908.

Eor the plaintiff in error there was a brief by James L. O'Qonnor and Tlvomas M. Kearney, and oral argument by Mr. Kearney.

Eor the - defendant in error there was a brief by the Attorney General and Francis F. McGovern, district attorney, and W. A. Hayes, assistant district attorney, of counsel, and Oral argument by Mr. McGovern and Mr. Ha/yes.