Brown v. State

• Decision Date: 01 August 1916
• Docket Number: 6 Div. 84
• Citation: 15 Ala.App. 180,72 So. 757
• Parties: BROWN v. STATE.
• Court: Alabama Court of Appeals

72 So. 757

15 Ala.App. 180

BROWN v. STATE.

6 Div. 84

Court of Appeals of Alabama

August 1, 1916

Rehearing Denied Sept. 7, 1916

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

Jerome S. Brown was convicted of levying blackmail, and appeals. Affirmed.

The first count was as follows (omitting formal charging part):

Jerome S. Brown and J.T. Howle levied blackmail on Smith Cullom, Jr., by threatening to make a disclosure by publication injurious to the character of said Smith Cullom Jr., for the purpose of getting money from said Smith Cullom Jr., or other benefits, contrary to the statutes in such case made and provided.

The following are the charges marked refused to the defendant:

(E) Unless you believe from the evidence beyond a reasonable doubt that the money was paid to the defendant Brown as the result of the threat made by him that publication of the affray with which Smith Cullom, Jr., was connected, and which took place at what has been termed in the testimony "The Elms," your verdict should be not guilty.

(F) The defendant cannot be convicted on the evidence that J.T. Howle admitted or stated to Smith Cullom, Jr., after the transaction with Robert Thach in which the $100 was paid under the circumstances narrated in the evidence, that it was he (J.T. Howle) who called the said Smith Cullom over the phone and told him about the publication of an account of the affray at The Elms with which the witness Smith Cullom was connected.

(G) Unless you believe from the evidence that defendant Brown was connected with the publication of the account of the affray with which Smith Cullom was connected at The Elms, you should find the defendant not guilty.

A Latady and C.C. NeSmith, both of Birmingham, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

BROWN J.

The appellant was convicted of the crime denounced by section 6391, Code 1907. The verdict responded to the first count only of the indictment, operating as an acquittal as to all other counts. Walker v. State, 91 Ala. 32, 10 So. 30. Therefore the first count is the only one inviting consideration. The statute is not merely an affirmation of the common law, but creates a new offense. The provisions of the statute under which the first count of the indictment is framed are:

"Any person who shall levy *** blackmail on another, by *** threatening to make *** any disclosure, *** by publication, injurious to the character of any person for the purpose of getting money or other benefit *** must, on conviction, be punished by a fine not exceeding one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, not exceeding twelve months."

A comparison of the language of the statute with the averments of the indictment shows that it substantially, if not literally, follows the language of the statute and charges all the facts essential to constitute the offense. This, under the repeated rulings of the Supreme Court, is all that is required. The demurrers to the indictment and the motion is arrest of judgment were properly overruled. Wilson v. State, 61 Ala. 151; Smith v. State, 63 Ala. 55; Walker v. State, supra; Marshall v. State, 120 Ala. 391, 25 So. 208; Flake v. State, 19 Ala. 551; Sellers v. State, 49 Ala. 357.

The state offered evidence tending to show that one Howle, for the purpose of obtaining money from Cullom, threatened to make a disclosure by publication of an article in the Searchlight, a newspaper formerly owned and operated by defendant, but at the time owned and controlled by Howle, published in the city of Birmingham; that such article was calculated to injure the social standing of Cullom; and the state's evidence tended to show that the defendant was particeps criminis with Howle. The defendant does not deny that Howle proposed to make the publication nor that Howle, as a result of the negotiations with Cullom's friends and agents, obtained the sum of $100 for the suppression of the defendant's name in the publication, and offered evidence tending to show that defendant was not personally interested in the transaction or connected with the proposed publication. He, however, admits that he was present during some of the negotiations, and that the money was turned over to him by Cullom's agents to be delivered to Howle. One contention of defendant was that the intent and purpose of the publication was the suppression of a place of vice by giving to the public intelligence as to the conduct of those who resorted to a place known as "The Elms," and not for the purpose of obtaining money from Cullom or any one else; and that the payment by Cullom was voluntary and for the purpose of reimbursing Howle the necessary expense incident to having the publication...