Commonwealth v. Snow

• Decision Date: 07 January 1930
• Citation: 169 N.E. 542,269 Mass. 598
• Parties: COMMONWEALTH v. SNOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 598

169 N.E. 542

COMMONWEALTH

v.SNOW.

Supreme Judicial Court of Massachusetts, Franklin.

Jan. 7, 1930.

Exceptions from Superior Court, Franklin County; Henry T. Lummus, Judge.

Jesse W. Snow was convicted for having threatened an injury to person and property of another with intent to extort money, and he brings exceptions. Exceptions sustained.

C. Fairhurst, Dist. Atty., of Greenfield, for the commonwealth.

H. J. Field, of Greenfield, for defendant.

RUGG, C. J.

This indictment charged that the defendant at a specified time and place ‘did by a written communication maliciously threaten Nora Downs to do an injury to the person and property of said Nora Downs with intent thereby to extort money from the said Nora Downs.’ There was evidence tending to show that the defendant secretly and anonymously caused a written communication to be made to Nora C. Downs, whereby a threat was made to her in effect that her child would be ‘grabbed’ and kidnapped and her place destroyed, if she did not put $500 in cash near a designated tree at a stated hour, and that for that sum ‘cash you and the kid will be let alone. If you fail to pay or tell any one watch out,’ together with other ancillary threats. The communication was signed ‘Greenfield Mafia’ and by a drawing of a ‘black hand.’ It was conceded that the Nora Downs named in the indictment is the same person as the Nora C. Downs to whom the communication was made, and that Beulah C. Downs, her minor daughter, is the child referred to in that communication. The defendant offered no evidence. He made a motion for a directed verdict in his favor (1) because of variance between the name Nora Downs in the indictment and the name Nora C. Downs shown by the evidence; and (2) because, under G. L. c. 265, § 25, it is not a crime maliciously to threaten one person with injury to another with intent to extort money from the person threatened. Another ground stated in the motion is not now argued and is treated as waived. This motion was overruled and the defendant excepted.

[1][2] At the common law and under our earlier decisions the variance between the name Nora Downs as charged and the name Nora C. Downs as proved would have been fatal. The middle name or initial is part of the name. Commonwealth v. McAvoy, 16 Gray, 235;Anderson v. Qualey, 216 Mass. 106, 109, 103 N. E. 90, and cases cited. It was held in Commonwealth v. Buckley, 145 Mass. 181, 13 N. E. 368, 369, that the ‘name of the person threatened is necessary to the identity of the offense charged in the indictment, and therefore must be proved as set forth.’ Subsequent to these decisions it was enacted that a ‘defendant shall not be acquitted * * * by reason of an immaterial misnomer of a third party. * * *’ G. L. c. 277, § 35, reenacting the substance of St. 1899, c. 409, § 4. This ‘statute is designed to avoid the possibility of reversible error, not going to the merits of the accusation, where in fact the defendant does not suffer prejudice. Senate Doc. of 1899, No. 234. * * * The statute is remedial and should be construed with reasonable liberality and so as to give effect to all its provisions. The defendant is safeguarded by his right to a bill of particulars and the power and obligation of the judge to see that he suffers no actual harm.’ Commonwealth v. Cabot, 241 Mass. 131, 144, 135 N. E. 465. Under this statute the requirement of exact correspondence between the allegation in the indictment and the proof at the trial of the name of a third person is relaxed. The defendant is still protected against material misnomers of third persons. It is sufficient now that the defendant was informed of the charge and suffered no harm in his defense, if enough appears to protect him against another prosecution for the same offense. See Bennett v. United States, 227 U. S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531;Commonwealth v. Bannon, 254 Mass. 320, 150 N. E. 7;Commonwealth v. Baxter (Mass.) 166 N. E. 742;Bartkus v. United States (C. C. A.) 21 F.(2d) 425, 427;King v. United States (C. C. A.) 25 F.(2d) 242, 245;Harris v. People, 64 N. Y. 148, 154. The case at bar, in view of all the circumstances, falls within the terms of the statute and the defendant was not entitled to an acquittal because of variance.

[3] The statute under which the defendant was indicted consists of a single sentence of G. L. c. 265, and is in these words, so far as here pertinent:

1 ‘Section 25. Whoever, verbally or by a written or printed communication,

2 maliciously threatens to accuse another of a crime or offense, or

3 by such communication maliciously threatens an injury to the person or

4 property of another, with intent thereby to extort money or any pecuniary

5 advantage, or with intent to compel the person so threatened to do any

6 act against his will, shall be punished. * * *'

It is to be observed that the part of this section ending with the word ‘another,’ being the third word in line 4, governs all that follows, and that the rest of the section falls into two parts; the first part ending with the word ‘advantage’ in line 5, and the second part beginning with the word ‘or’ in line 5 and ending with the word ‘will’ in line 6. All that follows deals solely with the punishment. This first part contains no express or implied limitation as to the person to whom the threat is made, or as to the person from whom it is intended to extort money or other pecuniary advantage. According to the natural meaning and the grammatical construction of this part of the section, the threat may be made to anybody-the person to be accused or injured, the person from whom it is intended to extort the money or other pecuniary advantage, or a different person. That part of the section is couched in the broadest terms. The only requirement for the establishment of the crime thereby created is that the specified threat be made with the intent to extort. Proof of those facts substantiates the offense. The one making the threat need not even have a definite person in mind as the person from whom the money or other pecuniary advantage may be extorted. That part of the statute would be satisfied by intent to extort the money or pecuniary advantage from anybody. A threat made to A to accuse B or to do injury to C, with intent to extort money or other pecuniary advantage from X, would fall within the phrase of the statute. The generality of the first part of the section is brought into clear relief and emphasized by contrast with the explicitness in its second part, where the crime is described as being committed by making the threat ‘with intent to compel the person so threatened’ to do an act. There the person ‘so threatened’ is specified as the only person with respect to whom the crime is committed. The crime thus set forth could be proved only by evidence of a threat to A with intent to compel A to act. In the one case the intent to extort is defined in words of wide import; in the other it is narrowly confined. The restriction of the second part cannot rightly be stretched backward to constrict the broad language previously used. The structure of the section as a whole confirms this interpretation. The punctuation of the section, so far as an aid to its construction, tends in the same direction. Dowling v. Board of Assessors of Boston (Mass.) 168 N. E. 73.

The defendant's motion for a directed verdict on this branch of the case was denied rightly.

This conclusion is more or less directly supported by authority. Commonwealth v. Coolidge, 128 Mass. 55, 57;Commonwealth v. Corcoran, 252 Mass. 465, 483, 148 N. E. 123;People v. Thompson, 97 N. Y. 313.

At the close of the evidence the judge without objection on the part of the defendant stated his intention to submit the case to the jury upon the threat against the person of the child, Beulah C. Downs, only, with intent thereby to extort money from Nora C. Downs and to eliminate from the case consideration of a threat to injure property. The case was then argued to the jury upon the issue thus stated, without objection by the defendant. The difference between the issue thus stated and the charge as laid in the indictment was not expressly brought to the attention of the judge. After the judge began to give his final instructions to the jury, it was discovered that the indictment set forth a threat to do an injury to the person of Nora Downs and not a threat to do an injury to the person of Beulah C. Downs. The district attorney then moved to amend the indictment (already quoted) by striking out the words ‘and property of said Nora Downs' and by inserting in place thereof the words ‘of Beulah C. Downs, a minor child of said Nora Downs.’ Thus the indictment, if the motion to amend were granted, would charge the defendant with having threatened Nora Downs to do an injury to the person of her child Beulah with the intent to extort money from Nora Downs. There was a hearing forthwith on the motion to amend. The judge ‘called the attention of counsel for the defendant to the issue which had already been argued to the jury and to the identity of that issue with the issue raised by the indictment as proposed to be amended, asked counsel for the defendant to point out any way in which the defendant would be prejudiced in his defense by the allowance of the motion, and offered to give the defendant, if the motion should be allowed, opportunity to present further evidence or make further argument as he might desire. Counsel for the defendant answered that he was unable at that time to point out any way in which the defendant would be prejudiced in his defense by the allowance of said amendment and declined to introduce any further evidence or make any further argument, but protested against being asked to point out any way in which the defendant might be prejudiced in his defense and objected to the allowance of said amendment.’Thereupon the amendment was allowed, subject to the exception of the defendant,...