McKenzie v. State

• Decision Date: 23 May 1925
• Docket Number: 24518
• Citation: 204 N.W. 60,113 Neb. 576
• Parties: HARVEY MCKENZIE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

204 N.W. 60

113 Neb. 576

HARVEY MCKENZIE v. STATE OF NEBRASKA

No. 24518

Supreme Court of Nebraska

May 23, 1925

ERROR to the district court for Gosper county: CHARLES E. ELDRED JUDGE. Affirmed.

AFFIRMED.

Samuel A. Dravo and Edward J. Lambe, for plaintiff in error.

O. S Spillman, Attorney General, and Harry Silverman, contra.

Heard before MORRISSEY, C. J., ROSE, GOOD and EVANS, JJ., REDICK and SHEPHERD, District Judges.

OPINION

EVANS, J.

The plaintiff in error (hereinafter called the defendant) was convicted in the district court for Gosper county under an information charging him, in count 1, with a violation of section 9582, Comp. St. 1922, and, in count 2, with a violation of section 9579, Comp. St. 1922. At the close of the state's evidence, on the defendant's motion, the court required the state to elect upon which count it would rely, and it elected to rely and proceed under count 1. All evidence pertaining to count 2 was properly withdrawn from the jury and it will not require further consideration. The defendant was sentenced "to pay a fine of $ 300 and costs of prosecution and to stand committed to jail until the fine and costs are paid."

The errors assigned are: (1) The information is fatally defective, in that it does not charge a crime under either section 9579 or section 9582, Comp. St. 1922; (2) the evidence does not support the verdict; (3) the court's instructions Nos. 1 to 7, inclusive, severally are foreign to the issues, erroneous, and prejudicial to the defendant; (4) the court erred in overruling defendant's motion in arrest of judgment and the defendant's motion for a new trial.

Assignment No. 1. The count of the information under which the defendant was tried, excluding the formal parts, is in the following language:

"In Gosper county, Nebraska, on or about the 11th day of March, 1924, Harvey McKenzie, the defendant, maliciously, feloniously, and unlawfully under threats of exposure for crime, in this, to wit, said Harvey McKenzie threatened to accuse and expose one Dick Miles the minor son of J. M. Miles for the crime with others on or about the first day of March, 1924, in the county of Gosper and state of Nebraska, of stealing, taking and carrying away the sum of $ 500 in money property of Harvey McKenzie and did then and there extort and demand of the said J. M. Miles, that unless he did then and there promise to pay to the said Harvey McKenzie the sum of $ 500 as follows, $ 100 cash money and $ 100 on the first day of each month thereafter, until the full sum of $ 500 was paid by said J. M. Miles to the said Harvey McKenzie, that he the said Harvey McKenzie would cause the said Dick Miles to be arrested and prosecuted for said crime of stealing, taking and carrying away the sum of $ 500, that said charge was false, and to avoid the said false charges and exposure the said J. M. Miles, then and there and by reason of said threats, did pay to the said Harvey McKenzie the sum of $ 100, the property of the said J. M. Miles, which the said Harvey McKenzie then and there under threats of exposure for crime extorted of and from the said J. M. Miles, contrary to the statutes in such case made and provided and against the peace and dignity of the state of Nebraska."

This charges that the defendant, "under threats of exposure for crime"--the larceny of $ 500 by Dick Miles, son of J. M. Miles--did extort and demand money from J. M. Miles. This, it is claimed, did not charge a crime under the statute. The information charges the crime in the language of the statute, and this is sufficient so far as the formal presentation of the facts, existing in this case, are concerned. Sandlovich v. State, 104 Neb. 169, 176 N.W. 81; Goff v. State, 89 Neb. 287, 131 N.W. 213; Cordson v. State, 77 Neb. 416, 109 N.W. 764. And, unless the phrase, "under threats of exposure for crime," etc., is confined to a threat to expose the particular person from whom it is sought "to extort money or pecuniary advantage," this information is sufficient.

The gist of the crime described in section 9582, Comp. St. 1922, is the extortion of "money or other valuable consideration." Green v. State, 157 Ind. 101, 60 N.E. 941, See, also, State v. Debolt, 104 Iowa 105, 73 N.W. 499; Lee v. State, 16 Ariz. 291, 145 P. 244, Ann. Cas. 1917B, 131; State v. McGee, 80 Conn. 614, 69 A. 1059; Eacock v. State, 169 Ind. 488, 82 N.E. 1039.

The threats of exposure do not constitute the crime. Rather, it is the duty of the individual to make the exposure, and if he, in fact, is instrumental in causing a prosecution for a criminal act, it will not constitute an offense and probably will merit commendation.

"Extort" means to gain by wrongful methods; to obtain in an unlawful manner; to compel payments by means of threats of injury to person, property, or reputation. State v. Richards, 97 Wash. 587, 167 P. 47. See, also, State v. Adams, 30 Del. 335, 106 A. 287.

"Threat," in criminal law, is a menace or declaration of one's purpose or intention to work injury to the person, property, or rights of another (State v. Cushing, 17 Wash. 544, 50 P. 512), with a view to restrain a person's freedom of action (Standard Dictionary), and the act of extortion is complete, when one by such threat has produced, in the mind of the person against whom it is made, a fear of such a nature as to affect his mind so as to influence his conduct in such manner that he decides to pay that which he otherwise would not have paid, or to give that which he otherwise would not have given; or, if the result described is brought about under threats of exposure for crime, every element to constitute the crime of blackmail, described in section 9582, supra, is present. It follows that whether the threat relates to the conduct of the person from whom it is sought to extort the money or property, or to that of a member of his family, his church, or any group, through or by reason of which his will may be overcome, all the elements of the crime described in this statute appear, and the evils which the legislature sought to cure, and the acts described in the statute, unquestionably are present in every case that could arise under such a construction of the statute. To narrow the construction would do violence to the language used by the law-making body. It will be observed that, while the gist of the act is the securing of another's money or property, another element is the attempt to unduly influence the conduct of another and overcome his will as to a particular course of action.

The defendant urges that the effect of this threat, as alleged, was that he would institute a prosecution for larceny, and hence it was not a threat of exposure, but of accusation, and only applicable to a charge under section 9579, supra. In so doing defendant fails to recognize that "expose" is a broader and more comprehensive term than "accuse," and that exposure may be brought about by accusation as well as by the various ways he describes, and be none the less exposure. There may frequently be states of fact constituting an offense under either section 9579 or 9582, supra. The present case is such an one.

The threat was to have Dick Miles arrested for stealing, which must, of necessity, bring publicity and hence "exposure for crime," and it did extort money from J. M. Miles. In section 10074, Comp. St. 1922, it is expressly provided that no indictment shall be in any manner affected because of "any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved."

If we assume that section 9579, supra, was nonexistent, the information would charge a crime under section 9582, supra. It is alleged that the defendant "threatened to accuse and expose one Dick Miles," etc., but the most that can be said with reference to the words "accuse and" is that they are surplusage. Hase v. State, 74 Neb. 493, 105 N.W. 253. See, also, Smith v. State, 109 Neb. 579, 191 N.W. 687. "The test by which to determine the sufficiency of an indictment" or information "is whether enough remains after rejecting all unnecessary averments thereof to satisfy the requirements of the statute." Blodgett v. State, 50 Neb. 121, 69 N.W. 751. If, therefore, the words "accuse and" are omitted, there remains sufficient to charge the crime of blackmail under section 9582, supra. There is alleged in the information all the facts necessary to bring the charge within the intent and meaning of the statute, and when this has been accomplished the information is sufficient.

Assignments No. 2 and No. 4 will be considered together. The theory of the defendant was that he was robbed by the son of the complaining witness of $ 500, and that he was seeking a return of that which had been wrongfully taken from him, and that he had made no threats to expose and did not attempt to extort money. This was the issue to the determination of which the evidence of both state and defendant was directed. The evidence was conflicting, and the issue was fairly submitted to the jury and its verdict should not be disturbed.

"If a finding of a jury is attacked as not sustained by sufficient evidence, it will not be disturbed by the appellate court unless manifestly wrong." Ward v. State, 58 Neb. 719, 79 N.W. 725. See, also, Shannon v. State, 111 Neb. 457, 196 N.W. 635; Whitman v. State, 42 Neb. 841, 60 N.W. 1025; Palmer v. People, 4 Neb. 68.

It will be observed that this rule was adopted by this court early in its history and has been consistently followed until the present time, and no good reason is assigned for a departure therefrom.

In the second division of defendant's argument authority is cited to the effect that,...