People v. Beggs

D efendant, who is an attorney at law, appeals from the judgment pronounced upon the verdict of a jury finding him guilty of the crime of extortion as defined in section 518 of the Penal Code.

The verdict was based upon facts which the evidence tended to establish, as follows: Joseph Steining was the proprietor of a store from which goods had from time to time been stolen. Acting upon information which pointed to Joseph N. Da Rosa, an employee- of the store, as the one guilty of the thefts, Steining caused him to be arrested by a detective and taken to the police station, where, in the absence of a complaint filed, he was “booked” as charged with the crime of petit larceny. At the time of his arrest Da Rosa admitted that he was guilty of purloining certain articles, including two suits of clothes, the value of all of which did not exceed fifty, dollars, which sum he then offered to pay Steining. On the following morning Mr. and Mrs. Steining, accompanied by defendant, who meanwhile had been employed by them as an attorney in the matter, went to the police station where, in response to a request made by defendant, he was permitted to see Da Rosa, who was brought into a private office, and in the interview had, defendant learned that Da Rosa had about two thousand five hundred dollars on deposit in two banks. Accompanied by a police officer, Da Rosa was taken by defendant to the house of his sister, where he said he kept the bank-books, and after a prolonged search one of them was found and either taken by or turned over to defendant, who, with the officer, accompanied by Da Rosa, went to the office of defendant, where, leaving the officer in an outer room, he took Da Rosa alone into his private office, where he impressed upon him the gravity of his offense, stating that he could be sent to San Quentin, and that unless he immediately paid defendant two thousand dollars for the purpose of settling with Steining, he would be sent to prison for seven or ten years. As a result of what defendant said and by reason of the fear induced by such threats, Da Rosa went with defendant to the banks where his money was deposited and, as directed by Beggs, signed receipts upon which two thousand dollars was drawn and delivered to defendant in payment of what he claimed to be due Steining on account of the thefts committed by Da Rosa, nine hundred dollars of which sum defendant paid to

Several alleged errors in the trial are asserted as grounds for reversal, chief of which in importance is the claim that the court erred in refusing at defendant’s request to give certain instructions to the jury, among which were the following: “The effort on the part of a creditor to collect a debt by threat to accuse the debtor of the crime out of which the debt arose does not constitute extortion, nor does it cover the case of an owner who demands from an employee compensation for property which he has stolen or embezzled. The threat of one to prosecute for the theft of his property unless settlement is made does not constitute extortion. In order to constitute extortion there must exist in the person mating the threats an intent to gain unlawfully.” Other instructions of like import were requested and refused. While refusing the instruction so requested, the court instructed the jury that “the law does not permit the collection of money by the use of fear induced by means of threats to accuse the debtor of crime. It makes no difference whether Da Bosa stole any goods from Steining, nor how much he stole”; and that “it is your duty to convict the defendant, even though you should also find that he believed that Da Bosa -was guilty of the theft of Steining’s goods in an amount either less than, equal to, or greater than any sum of money obtained from Da Rosa.” Other like instructions were given, the effect of which was to withdraw from the consideration of the jury all questions as to the good faith with which defendant acted in thus enforcing payment of the money alleged to be due to Steining.

Section 518 of the Penal Code provides that, “Extortion is the obtaining of property from another, with his consent,

The consent of the injured party in surrendering his property must, in the language of the statute, be “induced by the wrongful use of fear. ’ ’ This implies there may be a rightful use of fear. "What meaning is to be ascribed to the word wrongful? Is it wrongful for A, from whom B has stolen goods, to threaten the latter with prosecution unless he pay the value thereof, and thus, by means of the fear induced by such threat, obtain from B that which is justly due to A? In our opinion, the answer is found in provisions of the code other than section 518, which, read in connection with section 518, clearly show that the use of fear induced by such threats as a means of collecting a debt, is wrongful. Thus section 519 of the Penal Code provides: “Pear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person ... of the individual threatened ... 2. To accuse him, ... of any crime.” And section 523 of the Penal Code provides that one who, with intent to extort money from another by means of a letter containing “any threat such as is specified in section 519, is punishable in the same manner as if such money . . . were actually obtained by reasons of such threat. ” Section 650 of the Penal Code makes it a misdemeanor for one by letter to threaten another with the accusation of a crime. These provisions, all adopted at the same time and relating to the same subject matter, clearly indicate that the legislature in denouncing the wrongful use of fear as a means of obtaining property from another had in mind threats to do the acts specified in section 519, the making of which for the purpose stated is declared to be a wrongful use of fear induced thereby. The first subdivision of section 519 provides that fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury, thus excluding fear induced by threat to do a lawful injury. (People v. Schmitz, 7 Cal. App. 330 , [ 15 L. R. A. (N. S.) 717 , 94 Pac. 407 , 419].) No such qualifying words are used in other subdivisions of the section. Subdivision 2 thereof, under which the prosecution in the instant case was had, in effect declares that fear as a means of extortion may be induced by a threat to accuse one of crime. The absence of any qualifying words, such as are found in subdivision 1 of the section,

If, instead of paying the two thousand dollars, Da Rosa under the circumstances shown to exist, had given his note and a mortgage securing the same, then, under the authority of the case cited, payment thereof could not have been enforced, the reason therefor being that execution of the secur

Our interpretation of the statute finds full support in an able and- exhaustive opinion of the supreme court of South Dakota in a case entitled In re Sherin, 27 S. D. 232 , [Ann. Cas. 1913D, 446, 40 L. R. A. (N. S.) 801 , 130 N. W. 761 ], where the court, having under consideration code provisions identical with sections 518, 519, and 523 of our Penal Code, said: “The word ‘wrongful,’ as used in the statute, has no reference whatever to the question of the justness of the ultimate result sought, but relates solely to the methods used to obtain such results. ’ ’ In State v. Bruce, 24 Me. 71 , it is said: “A person whose property has been stolen cannot claim the right to punish the thief himself, without process of law, and to make him compensate him for the loss of his property by maliciously threatening to accuse him of the offense.” In the case of People v. Eichler, 75 Hun, 26 , [ 26 N. Y. Supp. 998 ], it is said: “The moral turpitude of threatening, for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed, is as great as it is to threaten for a like purpose an innocent person of having committed a crime. The intent is the same in both cases, to acquire money without legal right by threatening a legal prosecution.” Appellant’s contention that an honest effort on the part of a creditor to collect a just debt by accusing or threatening to accuse the debtor of the crime out of which the debt arose or with which it is connected does not come within the purview of the statute, finds apparent support in a number of cases. Such, indeed, is the conclusion of the court in the case of People v. Griffin, 2 Barb. (N. Y.) 427, followed by State v. Hammond, 80 Ind. 80 ; Mann v. State, 47 Ohio St. 556 , [ 11 L. R. A. 656 , 26 N. E. 226 ], all of which cases, however, appear to have been based upon statutes materially different from the provisions under consideration.

The plain import of the language of our code is that to threaten a thief with an accusation and prosecution based thereon, unless he pays the value of property stolen, and which by reason of fear induced by such threat he does pay,

There is no merit in the contention that Da Rosa was an accomplice of defendant. It is the act of defendant that constituted the crime, and in this act Da Rosa had no part other than as his will was coerced by the wrongful threats which induced the fear that in the absence of consent he would be sent to state prison. In People v. Coffey, 161 Cal. 432 , 446, [ 39 L. R. A. (N. S.) 704 , 119 Pac. 901 , 906], in discussing the point the court by way of illustration said: “To the crime of seduction two parties are necessary, but the co-operation of the seduced is not criminal. She is a victim and she is not therefore an accomplice of the seducer.” So here, Da Rosa was a victim in the same sense as though Steining, to whom he was admittedly indebted, had at the point of a gun enforced collection by a threat to inflict bodily injury upon him. Cases of bribery and kindred crimes cited by appellant have no application, for they involve a willing co-operation in the commission of the offense. In reaching this conclusion reference is had to section 1111, of the Penal Code, as it stood prior to the amendment thereof in 1915, when the crime was committed. Assuming there was, as claimed, an implied agreement on the part of Steining not to prosecute, if the money was paid, nevertheless, as we have seen, there was no Voluntary assent by Da Rosa, without which it cannot be said that he was a party to an agreement for the compounding of a felony. Moreover, defendant is not being prosecuted for the compounding of a felony, but for extortion, wherein Da Rosa was the victim of his wrongful acts.

Error is predicated upon the fact that the court, over defendant’s objection, permitted the prosecuting witness to testify to the value of certain articles, the theft of which he admitted. A' necessary element of the crime was fear induced by the threat. The making of the threat being established, did it incite fear which operated upon the mind of Da Rosa in parting with his money % If the value of the goods stolen did not exceed fifty dollars, why, except for the fear induced by such threat did he pay two thousand

Neither was defendant prejudiced by reason of the court sustaining an objection to a question asked by the prosecuting witness on cross-examination, as follows: “And you would have been willing to pay two thousand dollars to get out of trouble, whether they threatened you or not?” The question was proper, in that it was sought thereby to ascertain whether the fear induced by the threat was the cause which prompted him to pay the money. The statute can only mean that the wrongful use of force or fear must be the operating or controlling cause which produced the consent, and hence, if some other cause were the primary and controlling one in inducing the consent, there would be no extortion. (People v. Williams, 127 Cal. 212 , [ 59 Pac. 581 ].) Conceding it to be error, it is, nevertheless, apparent that no prejudice resulted therefrom, for the reason that it was substantially and fully covered by subsequent like questions asked of the witness, to all of which he gave negative answers.

The admission of evidence as to conversations had with other persons by Da Éosa at which defendant was not present is assigned as prejudicial error. When the evidence was offered defendant objected to its introduction upon the ground that the conversations were hearsay and not had in the presence of the defendant. Thereupon the district attorney stated that he would show that a conspiracy existed between defendant, Tevis, and Police Officer Condron. Upon such representation the court, in the absence of any evidence tending to establish a conspiracy, admitted the evidence. No proof that a conspiracy existed was offered, and at the close of the people’s case defendant moved the court to strike from the record all evidence touching the conversations so had without defendant’s presence. In response to the motion, the court said: “The thing is, the testimony is in now, and I don’t see how you are going to strike it out of the minds of the jurors, even if the court would grant the motion to strike out the testimony from the record.” The record

To constitute extortion the wrongful use of fear must be the operating cause which produces the consent. As said in People v. Williams, supra: “If some other cause were the primary and controlling one in inducing the consent, then there would be no extortion.” As shown by the record, the chief direct proof of the making of the alleged threats by defendant is the testimony of Da Rosa as to what defendant did and said when they were alone in the latter’s private office. Da Rosa’s testimony as to these occurrences is flatly contradicted by defendant, whose story of the transaction is, in effect, that no threats whatever were made, and that Da Rosa when he met him at the jail the morning after his arrest expressed a desire to make amends for his misdeeds, and when told that Steining claimed to have lost by theft goods of the value of two thousand dollars during the preceding nine months, voluntarily said he was willing to pay said sum, hence, the existence or nonexistence of the chief element of the offense depended for its determination upon whether the jury believed the testimony of Da Rosa or that of defendant. The evidence complained of relates to three conversations, one of which was between Philip Da Rosa, father of the prosecuting witness, and Tevis, who, as a friend of the father, went with him to see his son the morning after the arrest. As to this conversation, Da Rosa’s father testified that while at the city hall in company with Tevis waiting to see his son, and before defendant had seen him, “I told Mr. Tevis better go and see Mr. John S. Williams, and Mr. Tevis told me he don’t need it, anything you need, I am just as good. ... He said you don’t have to go to see Mr. Williams because I understand the law myself. I am here. If you need anything I am here to help you out.

As stated, defendant in his interview with Da Rosa in the jail learned that he had money on deposit in two banks. He was also told that the books evidencing such deposits were at the house of Da Rosa’s sister, Mrs. Dutra. For the purpose of securing these bank-books, the presentation of which was a necessary requirement in withdrawing the money, the defendant took Da Rosa with Officer Condron, having custody of him, to Mrs. Dutra’s house, from which place, having found one of the books only, they went to defendant’s office. As they were leaving the office to make a search for the other bank-book, after -the making of the threats and before payment of the money, Da Rosa saw his father and Tevis on the sidewalk near defendant’s automobile which they were using, and, as he testified: “I did rush úp a little faster to speak to my father, and I told him to go to J. S. Williams because they were taking my money away. Somebody robbed my money.” This statement to his. father was in Portuguese, language with which defendant was unacquainted. In substance, the testimony as to what Da Rosa said to his father was corroborated by .the evidence of the latter, who was permitted to testify that owing to the fact that he did not fully understand his son, he asked Mr. Tevis: “My son talk about Williams, maybe he wants to see Mr. Williams. Mr. Tevis reply: ‘Oh, he don’t need to go to see Williams at all. He don’t have to go and see Mr. Williams, because the boy is going to pay a little bit, small amount, and don’t have to see Mr. Williams then. It will be all right. ’ ” The conversation had by Da Rosa with Condron, the officer in whose custody he had been placed while permitted to accompany defendant, occurred in the private office of defendant while he was absent from the room and after the making of the threats and before the money was paid. As stated by Da Rosa, he asked Condron who he was, when he “lifted his coat and show me a star and said: ‘I am

Appellant insists that his substantial rights were prejudiced by gross misconduct of the district attorney in his argument of the case to the jury. The contention is based upon the fact that in discussing the comparative personalities of

Further misconduct is predicated upon the fact that in the course of his argument the district attorney, in referring to restrictions imposed by law upon the people’s right to have alleged errors, as compared with that of defendant, reviewed on appeal, said: “The law is such that if the defendant proposes an instruction that is the law, and that the judge does not give, it is reversible error, and the case comes back for

There is no merit in appellant’s contention that the court erred in denying his peremptory challenges to prospective jurors. (People v. Schafer, 161 Cal. 573 , [ 119 Pac. 920 ]; People v. Ochoa, 142 Cal. 268 , [ 75 Pac. 847 ]; People v. Martinez, 31 Cal. App. 413 , [ 160 Pac. 868 ].)

The ruling of the court in denying defendant’s motion for a change of venue upon the ground that a fair and impartial trial could not be had in the county is fully supported by what is said in People v. Kromphold, 172 Cal. 512 , [ 157 Pac. 599 ], where the discussion was addressed to a like motion made upon similar grounds in support of which, however, there was an absence of the sharp conflict in evidence disclosed by the record in the instant case.

In the light of defendant’s, lengthy briefs and oral argument, we have examined the voluminous record with care. We find no error therein which, in our opinion, can be said to have been prejudicial to the substantial rights of defendant, or by reason whereof he was deprived of a fair and impartial trial by a jury whose reluctance in finding him

The judgment and order are affirmed.

Wilbur, J., Sloss, J., Melvin, J., and Angellotti, C. J., concurred.

Rehearing denied.