O'Neil v. State

• Decision Date: 15 April 1941
• Citation: 296 N.W. 96,237 Wis. 391
• Parties: O'NEIL v. STATE. KLINK v. SAME.
• Court: Wisconsin Supreme Court

237 Wis. 391

296 N.W. 96

O'NEIL

v.STATE.

KLINK

v.SAME.

Supreme Court of Wisconsin.

Feb. 4, 1941.

Rehearing Denied April 15, 1941.

Error to review judgments of the Circuit Court for Dodge County; Henry A. Detling, Judge.

Affirmed.

The plaintiffs in error, Frank L. O'Neil and Eugene Klink, were brought to trial on an information charging each of them with violating sec. 340.45, Stats., by maliciously threatening to prosecute Clara Lehman on a charge of criminal libel with the intent thereby to extort $1,400 from her. The jury found both defendants guilty of the charge alleged, and the court entered judgments approving the convictions and imposing a fine of $500 on Klink and $100 on O'Neil, with costs, and jail sentences in case of default. Each defendant petitioned for a writ of error.Grady & Fairchild and James J. Burke, all of Portage, for plaintiff in error O'Neil.

Roberts, Roe & Boardman, of Madison, for plaintiff in error Klink.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Clarence Traeger, Dist. Atty., of Horicon, for defendant in error.

FRITZ, Justice.

The principal assignments of error relied upon by the plaintiffs in error, Frank L. O'Neil and Eugene Klink (hereinafter called defendants), are that the court erred in denying their motions to direct verdicts acquitting and discharging them at the close of the trial, and to set aside the verdicts of conviction and order their discharge or, in the alternative, grant a new trial. In support of these assignments of error it is the defendants' contention that neither of them made any threat of a criminal prosecution and that O'Neil did not demand or want the payment of any money; that the testimony to the contrary by Clara Lehman and her husband, Henry Lehman, is so contradictory and incredible as to be unworthy of belief; and that each of the defendants was entitled to a directed verdict because the evidence shows conclusively that he was not guilty of extortion under sec. 340.45, Stats.

Although there are many conflicts in other respects in the testimony, the following matters were established beyond dispute. Clara Lehman and her husband, Henry Lehman, resided on premises adjoining the residence in which O'Neil and his wife resided in the city of Juneau. In February 1938 Clara Lehman sent an anonymous letter to Nicholas Klink, the Superintendent of the Dodge County Asylum and Home, and the father of the defendant Eugene Klink, who managed the Dodge County Farm under his father's supervision. In the letter there were statements which could be construed to charge that property belonging to the county had been misappropriated by or with the knowledge of Eugene Klink and that O'Neil had been somewhat benefitted thereby. As the trial court considered these statements libelous per se as against Klink and O'Neil, the state was not permitted to introduce proof to show the truth thereof; and as these rulings were in accord with O'Neil's and Klink's contentions, it suffices here to assume that the statements were so libelous. However, it may be noted that as the communication was sent by Clara Lehman to only Nicholas Klink, who was the Superintendent of the County Farm at which the misappropriations are charged to have occurred, it may have been privileged to such an extent that the publication thereof to Nicholas Klink only may not have rendered her liable in a civil action for libel. Werner v. Ascher, 86 Wis. 349, 351, 56 N. W. 869;Wilson v. Noonan, 35 Wis. 321, 349. Upon receiving the letter, Nicholas Klink gave it to the defendant Eugene Klink, who showed it to O'Neil, and arranged with the latter's consent to employ private detectives to discover the author of the letter. The detectives traced it to Clara Lehman, and obtained from her a written confession admitting that she sent that letter. Thereupon Eugene Klink, with O'Neil's consent, consulted Eugene Clifford, an attorney-at-law, in regard to the matter, and left the letter and the confession with him. Clifford had a conference in relation thereto with Clara Lehman at his office, and then arranged for another conference there on April 22, 1938, at which O'Neil and his wife, and Klink and his wife were also present. Two days before that meeting Klink examined records at the courthouse to find out about the assets belonging to Clara Lehman and her husband. At the conference on April 22, 1938, Clara Lehman was induced to say that she would personally raise and pay $700 or $800 to defray expenses which Klink claimed he had incurred in the investigation of the matter. Her husband was not asked to attend that conference because she did not want him to know about the letter. Thereafter four conferences were held at Clifford's office between all of the above-mentioned persons, including Henry Lehman. In the course of these conferences the amounts requested of Clara Lehman were increased from $700 or $800 to $1,200 and finally to $1,400 at the third conference. The latter amount was paid at the next conference by a check issued by Henry Lehman and mutual releases of all claims against each other were then signed and delivered by and between Clara Lehman on her part, and Klink and his wife on their part, and by Clara Lehman on her part and O'Neil and his wife on their part. The release given by the O'Neils provided for the payment of $200 to O'Neil, and the amount paid for the release given by the Klinks was $1,200 to Klink. Of this amount Klink paid to Clifford $150 as attorney's fees, and the reasonableness thereof has not been questioned.

The principal controversies in relation to the evidence are whether there is sufficient credible evidence to establish beyond a reasonable doubt that the defendants maliciously threatened to accuse Clara Lehman of criminal libel with the intent to extort money; whether O'Neil had personally demanded the payment of money by Clara Lehman; and whether Klink and O'Neil, acting together with their respective wives, had, by maliciously threatening to so accuse Clara Lehman, put her in fear of being prosecuted or whether she thought of that by herself. She and also her husband testified repeatedly and at considerable length, but with some conflicts in their testimony, that in the course of the conferences Klink and his wife, and also O'Neil and his wife, had called her a criminal, threatened her with a warrant for criminal libel, said that she could be sent to Taycheedah, and demanded the payment of “money and plenty of it”. She testified that when she offered, at the first conference, to pay Klink's expenses for investigating who wrote the letter, he refused her offer, and when she said that she supposed she would have to disgrace her family and go to Taycheedah, the others replied that was not the question; that they wanted money and plenty of it; that O'Neill and his wife and Klink all told her that they did not want to send her to Taycheedah, that they wanted money; that O'Neil came up and put his fist in her face and said, “We got you just where we want you now, you are nothing but a criminal and we are going to hold you for that”; that Mrs. O'Neil said that she (Mrs. Lehman) would go to Taycheedah where she belonged; and that they now had her for a criminal and would take out a criminal warrant against her and it would cost her husband plenty. There was also testimony by Henry Lehman that he was willing to pay the $800 which Klink said he wanted for detectives, but Lehman wanted an itemized statement of what the money was going for and Klink said that he would not see a thing, all he was to do was to pay; that just prior to the last conference at which the settlement was concluded, Klink came to Lehman's office and told him that he would give him just twenty-four hours to pay or he would take out a warrant and have his wife arrested; that the reason he paid the $1,400 was that he did not want her to go to jail and he did not want the publicity to ruin his business. There was testimony by Klink that Mrs. O'Neil was very angry at the first meeting; that O'Neil knew definitely before he left Clifford's office what the purpose of that meeting was; and that when Clifford read something about a driveway from an abstract of the title which O'Neil had brought to the meeting, O'Neil said his part would be that he would want the driveway, and also said Mrs. Lehman was a criminal and this matter had to be settled or they were going to take out a warrant to arrest her.

On the other hand, O'Neil and Klink, and their wives, and also Clifford denied in their testimony that O'Neil ever demanded the payment of money or that he or Klink or their wives had threatened to have a criminal warrant issued against Clara Lehman or to prosecute her unless payment was made; and they corroborated Clifford's testimony that he told Mrs. Lehman “We must forget about Taycheedah or else we get nowhere with this settlement.” Some of them also testified that up to the time when the $1,200 figure was mentioned O'Neil had not been offered anything; that at this meeting O'Neil went to Henry Lehman and said he did not want anything except the friendship of his neighbors, and Lehman replied, “I don't want to have anything to do with you. I don't want you to ever speak to me again”; and that O'Neil then said to Clifford, “I am not attending any further meetings, *** whatever settlement of this case you make will be satisfactory to me.” Clifford testified that he then called O'Neil into the next room and said, “You should have some compensation, you are entitled to something. Will $200 be satisfactory”, and O'Neil replied, “Yes”; and that the O'Neils and the Klinks then left the office.

[1][2][3] No useful purpose will be served by a more extended statement as to the evidence. It suffices to note that there was additional testimony introduced by the state, as well as the defense, in relation to facts and circumstances which can be considered to support or corroborate their...