In re McCabe

• Decision Date: 26 October 1903
• Parties: In re McCABE.
• Court: Montana Supreme Court

73 P. 1106

29 Mont. 28

In re McCABE.

Supreme Court of Montana

October 26, 1903

Application by William McCabe for a writ of habeas corpus. Petitioner discharged.

J. H Duffy and J. H. Tolan, for petitioner.

W. H Trippet and J. J. McCaffery, for respondent.

HOLLOWAY J.

On July 16, 1903, a complaint was filed in the justice of the peace court of Thos F. Murphy, in Anaconda township, Deer Lodge county, charging the petitioner, Wm. McCabe, with the crime of extortion, committed on July 10, 1903. The complaint alleges that one Louis Stanesich was employed by the Anaconda Copper Mining Company to perform work and labor at $2.50 per day; that petitioner was employed by the same company as a foreman, under whose direction Stanesich was working; that while these parties were so engaged the petitioner unlawfully obtained from the said Stanesich the sum of $10, and that such sum was obtained from Stanesich with his consent induced by the wrongful use of a threat made by the petitioner to do an unlawful injury to the property of Stanesich, to wit, a threat by petitioner to discharge Stanesich from his employment unless he paid to the petitioner the sum named. To this complaint the petitioner entered a plea of not guilty, and upon a preliminary examination he was held to answer the charge in the district court, and committed to the custody of the sheriff of Deer Lodge county. Thereafter the petitioner sued out a writ of habeas corpus, which was made returnable before this court. The return of the sheriff shows that the petitioner is detained by virtue of the commitment issued by the justice of the peace court upon the conclusion of the preliminary examination. The sheriff also attaches to and makes a part of his return a copy of the information filed in the district court charging the petitioner with the same offense as that charged in the complaint. The cause was heard upon the petition, which contains a copy of the complaint, and also a copy of the testimony given before the committing magistrate, and the sheriff's return. The prosecution was instituted under the provisions of sections 910 and 911 of the Penal Code, which read as follows:

"Sec. 910. Extortion is the obtaining property from another with his consent induced by wrongful use of force or fear or under color of official right.

"Sec. 911. Fear, such as will constitute extortion, may be induced by a threat either (1) to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family. ***

Upon the hearing it was conceded by counsel for both parties that the entire matter is to be determined by the interpretation given...