People v. Wightman — 6 N.Y. St. Rep. 521

Majority

p. 521

The People, etc., Resp’ts, v. Andrew J. Wightman, App’lt.

(Supreme Court, General Term, First Department,

Filed January 22, 1887.)

Headnote

Extortion—Penal Code, § 558—Indictment—Evidence.

If the commission of the crime wholly depended upon the language and

p. 522

import of the letter itself, and the letter as written and forwarded for the purpose of indemnifying or protecting the person named in the indictment, no offence could have been committed. But an indictment averring further the fact that the object in writing and sending the letter was to extort and gain money by falsely and publicly accusing one of criminal conduct, described and set forth in the counts, and the evidence tending to establish these acts, as well as the writing a.nd mailing the letter, bring the case within § 558 of the Penal Code.

Appeal from judgment of the court of oyer and terminer convicting the defendant of a violation of sec. 558 of the Penal Code of the state of New York.

Thomas M. Tyng. for app’lt; Mackenzie Semple, Ass’t. Disk Att’y, for people.

The case containing the exceptions as it has been settled, states that the people to maintain the, issues on their part introduced evidence tending to prove the acts charged in the first five counts of the indictment. At the close of the evidence given to prove the charges contained in those counts, an application was made for the acquittal of the defendant on the ground that the acts charged in such counts and proved by the evidence were not sufficient to constitute a crime and that the evidence was not sufficient to warrant a conviction of the crime therein charged in that the letter or writing did not threaten to do any or either of the acts specified in sec. .558 of the Penal Code. The motion was denied and to the decision made the defendant excepted.

These were the only objections taken to the case made against the defendant at the trial and they present the simple question whether proving the acts set forth in the first five counts of the indictment constituted a crime under this section of the Code.. To determine this part it becomes' necessary to examine these counts of the indictment, and' such an examination, particularly of the third, fourth and fifth "counts discloses the acts of the defendant to be such as to include the sending and causing to be forwarded" to and received by one Charles C: Sears, the letter contained in each of these counts of the indictment thereby threatening falsely and unjustly to cause and procure him to be put-to great charge and expense of his moneys and give security for the maintenance of a child of which, the woman named in the counts was alleged to be then pregnant, and that the appellant with the other defendants knew the contents of the letter and intended by means thereof, to extort and gain money from the person .to whom it was written and by whom it was received. That is the substance of the third count of the indictment. The fourth is very much the same in substance; while the fifth contains similar allegations averring the writing and sending of the letter

p. 523

threatening to expose Sears to and to impute to him disgrace, and to falsely and publicly accuse him of certain immoral conduct which, if true, would tend to and would degrade and disgrace him. To this statement is superadded the averment that the letter was sent and forwarded to and received by Sears and contained the charge of improper conduct included in the other counts and that this was done by the defendants with the intent and by means thereof to extort and gain money from Seal’s.

The case was argued by the defendant’s counsel upon the theory that it wholly depended upon the language and import of the letter itself. If this position were sound and the letter were written and forwarded for the purpose of indemnifying or protecting May A. Thatcher, named in the indictment, no offense would have been committed and the argument of the counsel would undoubtedly be sound. But that is not the case as the indictment presented it, and the evidence tended to prove the facts, for the averments contained in the indictment extended far beyond the writing and sending of the letter for any purpose of protection or indemnity to this woman, and averred the facts to be that the object in writing and sending the letter to Sears was to extort and gain money from him by falsely and publicly accusing him of the immoral conduct described and set forth in those counts. These were as much the acts referred to, and which the evidence' tended to establish, as the writing and mailing of the letter itself. They were each of them distinct parts of the crime intended to be charged, and in substance they disclose the facts to be. that the appellant, with the other defendants, caused this letter to be written and sent to Sears, intending thereby to extort money from him by the threat communicated through the letter by publicly and falsely making the accusation mentioned against him to render this extortion successful.

These are the prominent acts set forth in the indictment and bring the case within this section of the Penal Code by which it has been declared to be a crime for any person knowing the contents thereof and with intent by means thereof to extort any money or other property or to do, abet or procure any illegal or wrongful act, to send, deliver or in any manner cause to be forwarded or received any letter or writing threatening to expose or impute to any person any deformity or disgrace. The indictment was framed under this construction and language of the statute. By its allegations it brought the case within those provisions, and as the evidence sufficiently tended to prove them to support the verdict rendered by the jury, the judgment from which the appeal has been taken should be affirmed.

Van Brunt, P. J., Bartlett, J., concur.