Lee v. State

• Citation: 145 P. 244,16 Ariz. 291
• Decision Date: 29 December 1914
• Docket Number: Criminal 351
• Parties: ROBERT E. LEE, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

145 P. 244

16 Ariz. 291

ROBERT E. LEE, Appellant, v. STATE, Respondent

Criminal No. 351

Supreme Court of Arizona

December 29, 1914

APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge. Affirmed.

The facts are stated in the opinion.

Mr John McGowan, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant to the Attorney General, for Respondent.

OPINION

ROSS, J.

This appeal is prosecuted from a judgment of conviction of the crime of extortion. Complaint is made of errors (1) in overruling a demurrer to the information for insufficient facts to constitute the offense of extortion; (2) the admission of evidence over objection; and (3) the giving of erroneous instructions to the jury. We will consider these assignments in their order.

The charging part of the information is as follows:

"The said Robert E. Lee, on or about the 7th day of November 1912, and before the filing of the information in the county of Graham, state of Arizona, did willfully, knowingly, unlawfully and feloniously obtain certain personal property, to wit, $1,600 lawful money of the United States, from one H. E. Smith, then and there being with his said H. E. Smith's consent, which said consent was then and there induced by wrongful use of force and fear by and upon the part of said Robert E. Lee, defendant, to wit, by a threat then and there made and communicated to said H. E. Smith by said defendant, to accuse him, the said H. E. Smith, of having committed a crime, to wit, the crime of grand larceny in said county of Graham, and said personal property then and there being the property of said H. E. Smith."

Extortion is defined by the Penal Code of 1913, section 512, as follows:

"Extortion is the obtaining of property from another with his consent induced by wrongful use of force or fear or under color of official right." The "fear" mentioned "may be induced by a threat . . . (2) to accuse him . . . of any crime." Id. 513.

The appellant contends that the information is defective in that it fails to describe sufficiently the crime of which accusation was threatened, and he insists that the information, to be good, should set forth the particulars of the crime threatened. In other words, he says that the allegation that defendant threatened to accuse Smith with the crime of "grand larceny" is a mere conclusion of law, and that it cannot be made to take the place of the facts constituting the accusation. The offense with which appellant is charged is extortion, and the gist of it is the obtaining the property of another with his consent induced by fear of a threatened prosecution for a crime. For some cases the description of an offense by its generic name will indicate all the essentials of such offense. That is true of such well-known offenses as arson, burglary, larceny and murder. Fertig v. State, 14 Ariz. 540, 133 P. 99.

If the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the rights of the case, and contains the formal allegations of jurisdictional facts, the information is sufficient. Section 943, Pen. Code 1913. Tested by this statutory rule, it seems to us that the information is sufficient. That it is not necessary in an indictment or information of extortion to give a technical description of the accusation threatened against the prosecutor is supported by Commonwealth v. Philpot, 130 Mass. 59; State v. Lewis, 96 Iowa 286, 65 N.W. 295; Commonwealth v. Murphy, 12 Allen (Mass.), 449; State v. Stewart, 90 Mo. 507, 2 S.W. 790; Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; Cohen v. State, 37 Tex. Cr. 118, 38 S.W. 1005; State v. Robinson, 85 Me. 195, 27 A. 99. It is sufficient to charge that defendant threatened to accuse the prosecutor of a specified crime. Commonwealth v. Goodwin, 122 Mass. 19; Commonwealth v. Moulton, 108 Mass. 307; Commonwealth v. Dorus, 108 Mass. 488; Commonwealth v. Murphy, 12 Allen (Mass.) 449; Commonwealth v. O'Brien, 12 Cush. (Mass.) 90; Moore v. People, 69 Ill.App. 398; People v. Gardner, 73 Hun, 66, 25 N.Y.S. 1072. See note, 9 Ann. Cas. 196.

To properly understand the other two assignments of error it is necessary to epitomize the facts as developed at the trial. The prosecuting witness Smith testified that defendant and three confederates enticed him, by representing to him that one of his cattle was down, to go to an out-of-the-way place near his ranch, and that upon his arrival there he was commanded by the defendant, who pointed a gun at him to enforce his orders, to take an ax that was given him and kill a cow that defendant and confederates had tied to a tree; that he did as directed; that after the animal was killed he asked defendant, "What he meant by pulling a gun on me and making me kill that cow." The defendant answered, "He wanted a hundred head of cattle or $3,000." "I told him I couldn't give him $3,000, nor a hundred head of cattle." "He said he would take the hide to Foster and Marshall (who were the owners), and he and what others he had on the hill there would swear against me and stick me." "I told him I couldn't get him $3,000, and he says: 'If you will give me what Foster and Marshall are giving me, $2000, I will let you off.'" That the defendant compelled him to help skin the animal, and said, taking the hide, "If I would pay him $200 the next morning he would keep the hide and not present it to Foster and Marshall." The prosecutor paid the $200 the following morning by check at defendant's home, and four days later gave defendant $1,600, and received the hide from defendant. The defendant's testimony differs from that of the prosecuting witness, in that he says he knew the prosecutor was going to kill the animal at the time and place named, and that he knew that Foster and Marshall were offering a reward for the apprehension of persons stealing their cattle, and, knowing these facts, he laid for Smith and caught him; that Smith begged him not to divulge to Foster and Marshall his crime, and voluntarily gave him $1,800 to keep the crime a secret.

The evidence objected to by defendant, and the admission of which he assigns as error, was evidence given by the prosecuting witness of the defendant's pointing a gun at him, and of tracks leading to where the animal was killed. He says he was charged with extortion induced by use of threats; that the information does not charge the wrongful use of force; and that the state was permitted by such evidence to prove another and different offense than the one alleged in the information. The rule invoked by the appellant is not applicable to the facts of this case. The state was entitled to prove all the facts of the transaction, even though they did disclose another and different...