Bush v. State

• Decision Date: 08 November 1917
• Docket Number: Criminal 418
• Citation: 168 P. 508,19 Ariz. 195
• Parties: W. W. BUSH and ASA BROWN, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

168 P. 508

19 Ariz. 195

W. W. BUSH and ASA BROWN, Appellants, v. STATE, Respondent

Criminal No. 418

Supreme Court of Arizona

November 8, 1917

APPEAL from a judgment of the Superior Court of the county of Pinal. O. J. Baughn, Judge. Affirmed.

Mr. F C. Jacobs and Mr. Charles H. Studley, Jr., for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. Geo. W. Harben and Mr R. Wm. Kramer, Assistant Attorneys General, Mr. H. G Richardson, County Attorney, and Mr. Benton Dick, for the State.

OPINION

FRANKLIN, C. J.

At a preliminary examination Asa Brown and William W. Bush were held to answer for the crime of extortion. They were tried jointly upon an information based upon facts coming within the provisions of paragraph 516 of the Penal Code, and convicted. Hence this appeal. The objection is urged that the information upon which the defendants went to trial does not state the same offense for which, on their preliminary examination, they were held to answer. Under the heading "Extortion," in chapter 7, title 14 of the Penal Code of 1913, paragraph 512, the crime of extortion is defined to be the obtaining of property from another with his consent induced by wrongful use of force or fear or under color of official right. It is next provided in paragraph 513 that fear such as will constitute extortion may be induced by a threat, either (subdivision 2, the only one applicable here) to accuse a person or any relative of his or member of his family of any crime. In paragraph 514 the punishment for the offense when accomplished under circumstances not amounting to robbery is fixed at imprisonment in the state prison not exceeding five years. Paragraph 516 under which the information is drawn provides:

"Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred or any debt, demand, charge or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge or right of action were obtained."

The common law confined extortion to the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. 8 R.C.L., § 315, p. 293. The Penal Code, however, has enlarged the scope of this offense so as not to confine the commission of it to those persons who act under color of official right. Under the statute we have a very comprehensive crime which is not restricted to the obtaining of property, but which includes within the express terms those cases where a person obtains from another with the latter's consent, induced by wrongful use of force or fear or under color of official right, that person's signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created. The obvious purpose of the statute is to make not only those who actually obtain property by extortionate means come within its purview, but to extend it also to those persons who by extortionate means obtain from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred.

It is urged that the court erred in sentencing the defendants to confinement in the state prison for the reason that the statute under which they were prosecuted does not provide for such punishment. The objection is made because in the last part of paragraph 516 the language reads, ". . . is punishable in the same manner as if the actual delivery of such debt, demand, charge or right of action were obtained," omitting from the enumeration the word "property" used in the first part of the paragraph. It is clearly the intent of this statute to make the acts therein mentioned punishable in the same manner as if the property described in the instrument was actually obtained by extortionate means. The omission of the word "property" in this connection does not obscure the meaning of the statute in the least degree. Omitting the word "property" the language used describes the statute fixing the punishment with such certainty that there can be no doubt it is as clearly identified as if the legislature had said, " . . . is punishable as provided in paragraph 514." The information is said to be defective because it does not set forth the bill of sale alleged to have been signed or account for such failure. The instrument alleged to have been signed is stated to be a bill of sale and the legal effect pleaded. It is not perceived that such omission tended in any way to the prejudice of the defendants.

It is the duty of this court under the law to construe a provision of the Penal Code not technically, but according to the fair import of its terms, with a view to effect its object and to promote justice. So if an information can lawfully be upheld, the court should uphold it and not seek a strained view of the law to set it aside.

It is complained that the defendants were not permitted to show fully to the jury the character of the witness Arthur Sellick; that they should have been permitted to show that he had been arrested for vagrancy and the disposition of that case. The court allowed proof that Sellick had been arrested and convicted twice for vagrancy, that he had been arrested for bootlegging, white slavery, forgery, passing a check on a bank in which he had no funds, that he was a frequenter of the red light district in Winkelman. Not only as to this witness, but as to several of those for the defense, the record fairly reeks with the odor of the underworld, and the goings, comings and doings of habitues of the red light. The proper criticism is that the court placed no reasonable restriction on this class of testimony, allowing the attention of the jury to be distracted from the main issue. The multiplicity of these particulars should have been considerably abridged.

Arthur Sellick, who is the son of Mrs. Hannah L. Young, had forged the name of W. T. Armstrong to a check for $20. The defendant Bush was the marshal of the town of Winkelman, and at his request defendant Brown had arrested Sellick on this charge of forgery. On the night of November 30, 1915, the defendants Bush and Brown went to Mrs. Young's house with Arthur Sellick in custody. Mrs. Young knew that her son had forged Armstrong's name to a check. When Brown and Bush arrived at the house with Sellick they found Mrs. Young in her bedroom sick in bed. Mrs. Young is about fifty-five years of age, and appears to be an invalid suffering with nervous prostration. The defendant Bush informed Mrs. Young that her son was under arrest, and said it had to be settled that night; that Mr. Ming would take twenty-five head of cattle at thirty dollars a head, and he [Bush] would make out a bill of sale. Mrs. Young did not want to sell Ming any cattle. Rather than do so she would get up and dress and go over to see Luke Reay that night, and whatever money was necessary she would get it from him. She did not want Ming to have the cattle. She told Bush she could not give the bill of sale. Bush told her she need not mind about that because she could come and redeem the bill of sale, but if she refused to sign the bill of sale that night her son would be put over the road. Fearing this, Mrs. Young signed and acknowledged the bill of sale which had been drawn up by defendant Bush.

No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it. All that is necessary is that the alleged threat be definite and understandable to the mind of ordinary intelligence. It is absurd to contend that a threat to accuse one of crime must contain all of the statutory elements for the offense with which the party expects to charge another. If such were the rule the operation...