Eacock v. State, No. 20,936.

• Docket Nº: No. 20,936.
• Citation: 169 Ind. 488, 82 N.E. 1039
• Case Date: December 12, 1907
• Court: Supreme Court of Indiana

169 Ind. 488
82 N.E. 1039

EACOCK
v.
STATE.

No. 20,936.

Supreme Court of Indiana.

Dec. 12, 1907.

Appeal from Circuit Court, Tippecanoe County; Henry H. Vintor, Special Judge.

Joseph Eacock was convicted of conspiracy to blackmail, and he appeals. Affirmed.

[82 N.E. 1041]

Haywood & Burnett, for appellant. Danl. P. Flannagan, Pros. Atty., C. W. Miller, Atty. Gen., Geake, Dowling & Hadley, James Bingham, Atty. Gen., and White & Cavins, for the State.

MONKS, C. J.

This is a prosecution against appellant and one Lula B. Grimes, charging them with conspiracy to blackmail one Will E. Kessler. A trial of appellant on said charge resulted in a verdict of guilty, and over a motion for a new trial final judgment was rendered against him.

As the transactions upon which this prosecution is based occurred in 1904, the same is not in any respect governed by the crimes act of 1905, but by the crimes act and Code of Criminal Procedure of 1881, and the amendments thereof in force in 1904. Miller v. State, 165 Ind. 566, 570, 571, 76 N. E. 245;Stieler v. State, 166 Ind. 548, 77 N. E. 1083;State v. Thompson, 167 Ind. 96, 78 N. E. 328;State v. Hazzard (Ind.) 80 N. E. 149.

The errors assigned are: (1) The court erred in overruling appellant's motion to quash the indictment. (2) The court erred in overruling appellant's motion for a new trial.

So much of the conspiracy and blackmailing statutes as need be considered reads: “Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony; *** shall, upon conviction thereof, be fined *** and imprisoned in the state prison. ***” Section 2260, Burns' Ann. St. 1901. “Whoever, either verbally or by any letter or writing or any written or printed communication ***; accuses or threatens to accuse *** any person *** of any immoral conduct, which, if true, would tend to degrade and disgrace such person, or in any way subject him to ridicule or contempt of society *** with intent to extort or gain from such person any chattel, money, or valuable security *** is guilty of blackmailing, and shall, upon conviction thereof, be imprisoned in the state prison. ***” Section 1999, Burns' Ann. St. 1901. The gist of the felony defined as blackmailing is the extortion of money, chattels, or valuable securities from a person by menaces of personal

[82 N.E. 1042]

injury or by threatening to accuse him of crime or of any immoral conduct, which, if true, would tend to degrade and disgrace such person. In pleading a conspiracy to commit a felony the essential elements of the felony intended must be as fully set forth as in an indictment for such felony. Gillett, Crim. Law (2d Ed.) § 310; McKee v. State, 111 Ind. 378, 12 N. E. 510;Musgrave v. State, 133 Ind. 297, 305, 306, 32 N. E. 885. The indictment fully complies with this requirement, and is sufficient under the rule declared in Motsinger v. State, 123 Ind. 498, 24 N. E. 342;Utterback v. State, 153 Ind. 545, 55 N. E. 420. The court did not err in overruling appellant's motion to quash.

It is claimed by appellant that the court erred in permitting the state to introduce evidence concerning other alleged conspiracies to blackmail by appellant than that set forth in the indictment. Such evidence was properly admitted as tending to show the guilty knowledge, intent, and motive of appellant in doing what is charged in the indictment. Higgens v. State, 157 Ind. 57, 60 N. E. 685, and authorities cited; Sanderson v. State (Ind.) 82 N. E. 525;Crum v. State, 148 Ind. 401, 411–413, 47 N. E. 833;Strong v. State, 86 Ind. (dissenting opinion of Elliott, J., on pages 215–219, 44 Am. Rep. 292, which was approved in Crum v. State, supra, page 412 of 148 Ind., page 833 of 47 N. E.);State v. Lewis, 96 Iowa, 286, 297, 298, 65 N. W. 295; Gillett, Crim. Law (2d Ed.) § 870; 12 Cyc. pp. 406–411. As was said in Gillett's Indirect and Collateral Evid. pp. 79, 80: “Collateral crimes may be shown when they tend to prove malice, guilty knowledge, intent, motive, and the like, if such element enters into the offense charged. Conspiracy cases furnish a common illustration of this doctrine.”

The court correctly instructed the jury, in effect, that such testimony was not evidence that the conspiracy charged was formed, but that the same should only be considered by the jury if they found from the other evidence beyond a reasonable doubt that the alleged combination had been formed, and then only to determine the intent and motive of the parties thereto.

The state read in evidence, over the objection of appellant, a letter signed by him to Will E. Kessler, which contained the following: “C. E. Grimes of this city has employed me in the matter wherein he claims that you have alienated the affections of his wife and seduced her. I shall be glad to see you upon this matter forthwith. If immediate attention is not given it, action will be instituted immediately.”

It appears from the evidence of Lula B. Grimes, who was jointly indicted with appellant and who was a witness for the state, that she wanted “to get even” with Will E. Kessler, and told Mrs. Grace Brown, an intimate acquaintance, of her trouble with Kessler. At the request of Mrs. Brown, she went with her to the office of the appellant, an attorney at law, where Mrs. Brown, who knew appellant, introduced her to him.

She gave the following testimony in regard to the conspiracy charged: “My name is Lula Bessie Grimes. My husband's name is Charles E. Grimes. We have been married 11 years last June. Have known the defendant, Joseph Eacock, about 18 months. Am acquainted with Grace Brown, wife of Thomas Brown. I visited the office of Mr. Eacock in August, 1904; called there with Mrs. Grace Brown, who introduced me to Mr. Eacock. Mrs. Brown told him of the purpose of my visit, and that I was an acquaintance of hers and she wanted him to do the right thing by me. He said, ‘Grace, I usually do it; I always did it by you.’ Told Eacock I had an engagement with Mr. Kessler, and he had stood me up. He said, ‘That is all right; I am looking for such fish as that, and I will attend to him.’ I said, ‘This will not get me in trouble, will it?’ He said, ‘None in the least; I will attend to that.’ I stated to Mr. Eacock what Mrs. Brown had told me, that I was a fool for working the way I had worked for the last few years; there was ways of making money easier than that, and Mr. Eacock was the man that would get it. She persuaded me to go up there with her that afternoon and introduced me to Mr. Eacock. Giving my own self a compliment, he said ‘Grace was right;’ that I was too good looking a woman to work the way I was working. He said he would fix Will Kessler for that. I had known Kessler almost all my life. On that occasion Eacock asked my husband's name. I told him, and he said that was all he wanted; for me to go on, and he would call me back to the office when he needed me. He asked me if Mr. Grimes had any intention to leave the city for a short time, and, if not, could I arrange any way he would be out of the city? I told him the following week he was going to Louisville. My husband went there to the encampment of K. of P., Uniform Rank. It was about August 12th. He came back about the 19th. I next saw Mr. Eacock with reference to this matter the following Tuesday, or Wednesday, at his office. He called me to his office. When I went up he wanted to know where I had been all this time; that he could not find me in the city. Told him I had been out to Thorntown. He said, ‘Well, it was dead easy; I fixed Kessler all right.’ He said, ‘Here is $75; you take that and keep your mouth shut.’ He said something to me then about what I could do in the future. He told me if I would listen to him and do as he wanted me to do, inside of six months or a year I would be independent rich. He asked me if I would not like to make a good roll of money; I said, ‘I guess not, any more.’ He said, ‘You are foolish.’ He said, ‘Here is Grace; I have got her $10,000 within the last few years;’ and he said, ‘If you go down

[82 N.E. 1043]

and see — or —, I don't know which, and ask him for a loan for fifty dollars— don't forget to put on your best bib and tucker, and be sure and wear a veil—ask him for a loan of fifty dollars, and in return he will ask you for security, and you disremember the security and ask him to call at your house.’ He told me when I first went up he got $250; then when I went again he said $300 was all he could get, and it was ‘dead easy.’ He stated to me other persons he had gotten money from in this way with Mrs. Brown, different ones here in the city. At another time there was a business man on Main street mentioned. Mr. Eacock said he would threaten to file suit against Kessler for alienating my affections away from my husband. My husband was not with me on any of these occasions when I visited Mr. Eacock's office. My husband had no knowledge of the transactions between me and Eacock. After the grand jury commenced the investigation last winter Mr. Eacock said I must persuade my husband that he had employed him to protect himself as well as me.”

On cross–examination she testified: “Got acquainted with Mrs. Brown previous to the 9th of October, 1903; acquaintance became intimate; were engaged in lodge affairs together; had no acquaintance with Eacock before that. Mrs. Brown accompanied me to Eacock's office. The first conversation with Eacock was in the main room of office; no one in the room other than Eacock, Mrs. Brown, and myself. When Mrs. Brown introduced me to Eacock, Mrs. Brown and Mr. Eacock had a little conversation, and then I talked with Mr. Eacock. Didn't hear all of conversation that Mrs. Brown had with Eacock; don't remember conversation that I heard between Mrs. Brown and Eacock well enough to detail now; can't relate the substance of it any better than I did yesterday. I don't know what Mrs. Brown and Eacock said to each other when they were talking aside from me. I...