People v. Gillian — 2 N.Y.S. 476

Majority

p. 476

People v. Gillian.

(Supreme Court, General Term, Fifth Department.

October, 1888.)

Headnote

Blackmail—Indictment—Panol Evidence.

Under Pen. Code N. Y. § 558, imposing a punishment upon one who, with intent to extort money, sends a letter threatening to expose or impute to any person any deformity or disgrace, an indictment charging that defendant, by letter, to extort money, threatened to accuse one of having sexual intercourse with a woman not his wife, is sufficient to convict, where the letters asked a loan, stating that the addressee could not afEord to refuse, and adding, as postscript, that neither J. “ nor any of the family knows anything about thisparol evidence being admissible to show that the letter made the statutory charge, as set forth in the indictment, and that the addressee so understood it.

Appeal from court of sessions, Niagara county.

Defendant was indicted for the offense of sending threatening letters. Upon being arraigned, he demurred to the indictment, on the ground that the facts stated therein did not constitute a crime. The same was overruled, and the defendant pleaded not guilty, and after the verdict was rendered moved in arrest of judgment, which was denied, and he was sentenced to imprisonment for one year and four months. Defendant wrote and mailed to the complainant three letters, in the assumed name of “W. N. Wilkins,” the first of which is as follows: “Lookport, June 2, 1887. Mr. Gould—Dear Sir: I am in a tight place just now for the sum of one hundred dollars in cash. I cannot raise the money. I have tried every way, so I must ask you to loan me that sum amount until fall, and then I can pay you back, with interest. You will not refuse me this loan. You know that you cannot afford to refuse me. When you receive this, drop-a line in the P. 0., stating when you can get the money. Next week will do. Get large bills, and place it in a plain, white envelope, without registering, and it will reach me all safe. I do not wish to reveal my identity, for reasons, perhaps, which you can guess; therefore, you may write the following address plainly on your letter: 1 W. N. Wilkins, Jun., Lockport, N. Y.’ P. S. Neither old John, nor any of the

p. 477

family, knows anything about this. This is straight goods, and your money will be returned in the fall, with interest. (Confidential.) [Signed] Confidential.” The other letters were dated respectively June 14th, and October 26th, in the last of which there is this clause: “Therefore it is with reluctance that I am compelled to ask you again for the loan of one hundred dollars, for an indefinite length of time, to be paid as soon as possible.” The other portions of these letters do not bear upon the point considered in the opinion. The indictment charged that in and by the letters he threatened to accuse Gould of having had sexual intercourse with a woman not his wife, with intent, by means thereof, to extort from him' the sum of $100. From judgment on the verdict defendant appeals.

Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ,

Richard Crowley, for appellant. D. E. Brong, Dist. Atty., for the People.

This indictment is for attempting to extort money by the threat of charging the complainant, a married man, with living an adulterous life with a certain woman, whose name is mentioned in the indictment. The prosecution is founded on section 558 of the Penal Code, which declares that “a person who, knowing the contents thereof, and with intent by means thereof to extort or gain any money, * * * sends or delivers * * * any letter or writing threatening to expose or impute to any person any deformity or disgrace, is»punisliable by imprisonment for not more than five years.” The appeal book contains nothing but the judgment roll, and we are unadvised as to the nature and character of the proofs presented on the trial, and we must assume that the evidence was sufficient to sustain every material averment in the indictment. We are, therefore, on this appeal, limited to the examination of the single legal proposition presented by the demurrer, and renewed on the motion in arrest of judgment, which is: Do the facts stated in the indictment constitute an indictable offense? The learned counsel for the defendant makes the point that it should appear on the face of the letter or writing on which the prosecution is founded that the writer threatened to do one of the four things mentioned in the statute, and the character of the threat should be set out in the indictment; that in this case it does not appear on the face of either of the letters that the defendant made the threat that, if the complainant refused to make the loan of money as requested, he would charge him with having committed adultery with the woman named in the indictment, or with any other person. It must be admitted that, if the defendant had it in his mind, when he prepared and mailed the first letter, to make the accusation mentioned in the indictment, it is not clearly disclosed on the face of the letter, and the jury, on a mere perusal of the same, would not be permitted to find that the charge in the indictment was true. The rule, undoubtedly, is that a threat of the character mentioned in the statute must be made in the letter or writing delivered to the complainant, and, if this is not made to appear to the satisfaction of the j ury, the prosecution must fail. But, as we understand the rule, paroi proof may be introduced by the people for the purpose of showing that, by the use of the language, figures, and phrases employed by the writer, he threatened to make the charge as set forth in the indictment, and that the person to whom it was addressed so understood its meaning. If such is not the rule, much of the wrong and mischief intended to be reached by the statute would escape punishment. A person, by the use of a phrase or word, or by referring to some prior circumstance well known to both parties, might convey to the mind of the person addressed the understanding that, if the thing requested or demanded was riot done, the writer would accuse him of some criminal offense or violation of the moral laws of the community where he resided, which would bring him into contempt and disgrace. The gist of the offense is the attempt to extort money by a malicious threat to accuse of some crime. The words used do not con-

p. 478

statute the offense, without the accompanying intent to extort. Com. v. Moulton, 108 Mass. 307 . The threat as made need not contain a full description of the offense as charged in the indictment. It is sufficient if the language used in the writing, in connection with what preceded and what follows between the parties, imported a threat to charge the crime alleged, and was so understood by the parties. Com. v. Bacon, 135 Mass. 521 ; Com. v. O'Connell, 12 Allen, 451 . In the case of People v. Thompson, 97 N. Y. 313 , the court, in speaking on this question, said: “No precise words are needed to convey a threat. It may be done by innuendo or suggestion. To ascertain whether the letter conveys a threat, all its language, together with the circumstances under which it was written and the relations between the parties, may be considered; and, if it can be found that the proper and natural effect of the letter is to convey a threat, then the mere form of words is unimportant.” Archb. Grim. Pi. c. 608, in giving the rule as to the admissibility of paroi evidence to explain the meaning of the written language used, states, where it is doubtful from the letter what charge was intended, paroi evidence may be admitted to explain it. Rex v. Tucker, 1 Moody, Cr. Cas. 134. The surrounding circumstances may be such that the jury would readily believe that the purport and natural effect of the letter was to convey a threat of the nature and character set out in the indictment. That the letter was intended to convey a threat of some kind is manifest on the face of it, and the nature and character of the same is evidently disclosed in the postscript. We are to assume that the paroi evidence produced on the trial justified the jury in reaching the conclusion that all the material averments in the indictment were true, and that the threat was to make a charge of the import stated in the indictment, and by means of the same to extort the sum of money demanded. The judgment should be affirmed, and the proceedings remitted to the court of sessions in and for Niagara county. All concur.

Cases cited

People v. Thompson 97 N. Y. 313 N.Y. 1884-11-25 p. 478