People v. Krist, Docket No. 78-1910

• Decision Date: 02 June 1980
• Docket Number: Docket No. 78-1910
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry James KRIST, Defendant-Appellant. 97 Mich.App. 669, 296 N.W.2d 139
• Court: Court of Appeal of Michigan — District of US

Page 139

296 N.W.2d 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry James KRIST, Defendant-Appellant.

Docket No. 78-1910.

97 Mich.App. 669, 296 N.W.2d 139

Court of Appeals of Michigan.

June 2, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 670] James R. Neuhard, State App. Defender, Peter J. Van Hoek, Deputy State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and KELLY and LAMBROS, ^* JJ.

LAMBROS, Judge.

Following a jury trial, defendant was convicted of extortion, M.C.L. § 750.213; M.S.A. § 28.410, and sentenced to a term of 10 to 20 years imprisonment. Defendant appeals as of right.

On June 28, 1977, the defendant entered a gas station in St. Clair County and asked one of the attendants if he could charge some gasoline. The defendant represented to the gas station attendant, sixteen-year-old Mark Hartner, that he had a charge account at the station. After Hartner checked the records and informed the defendant he could not charge the gasoline, defendant became indignant and ordered Hartner to put gas in the car or he was going to "kick his ass". With that, the attendant filled defendant's gas tank. Hartner noticed that the defendant had been drinking and could see a wine bottle in the front [97 MICHAPP 671] seat of the defendant's car. While Hartner was filling defendant's tank with gas, defendant looked in Hartner's shirt pocket and asked for a cigarette. Although there was money in Hartner's pockets, the defendant stated that he only wanted a cigarette. Hartner and the defendant went inside the gas station to get a cigarette.

Once inside, defendant told Hartner to give him two packages of cigarettes from the cigarette machine. Hartner took some change from the till, purchased the cigarettes and gave them to the defendant. Defendant was dissatisfied with the brand of cigarette, so he slapped Hartner in the face and ordered him to get another brand. Hartner bought two more packages of cigarettes for the defendant.

After this incident, Hartner filled out a charge slip for the gas and cigarettes. Defendant told Hartner that his name was "Gypsy Saveeny". Hartner wrote the name on the slip and left it on the counter. The defendant remained at the station and continued to harass Hartner and his fourteen-year-old friend. He told the boys that he had a gun and ordered them about when customers appeared. The boys testified that they did not see a weapon. After the defendant had been at the station for approximately one hour, the owner, Don Greenia, returned. Defendant then got in his car and drove away. He was apprehended shortly thereafter. The arresting officer searched the car and seized a bottle of wine and a package of cigarettes, which were ultimately admitted into evidence. No weapon was found on defendant's person or in the car. Defendant was taken to the police station and charged with unarmed robbery. On the following day, the prosecutor raised the charge to extortion.

Defendant contends on appeal that he is, at [97 MICHAPP 672] most, guilty of unarmed robbery and that the evidence is insufficient to sustain his conviction for extortion. The testimony adduced at trial supports this theory.

The unarmed robbery statute, M.C.L. § 750.530; M.S.A. § 28.798, provides that,

"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another * * * any money or other property * * * not being armed * * * shall be guilty of a felony, punishable by * * * not more than 15 years."

On the other hand, the extortion statute, M.C.L. § 750.213; M.S.A. § 28.410, provides as follows:

"Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty (20) years or by a fine of not more than ten thousand (10,000) dollars."

In People v. Kruper, 340 Mich. 114, 120, 64 N.W.2d 629 (1954), the Michigan Supreme Court discussed the respective statutes and distinguished them from one another:

"The primary distinction between the offense of robbery and extortion is that in robbery the taking must be without the consent of the party robbed, while in extortion the taking is with consent."

[97 MICHAPP 673] This is at best a distinction without a difference, for both offenses equally demand that the defendant's threats induced the victim to give up his property, something which he would not otherwise have done:

"(T)he willingness to surrender the property in any case is only an apparent willingness since in both instances the victim must choose between alternative evils, namely the surrender of his property or the execution of the threat." Comment, A Rationale of the Law of Aggravated Theft, 54 Colum.L.Rev., 84, 85-86 (1954).

See also LaFave & Scott, Criminal Law, Ch. 8, § 95, p. 707.

The illusory nature of the Kruper distinction is made clearer when the very language of the extortion statute is closely examined. The applicable Michigan Statute, M.C.L. § 750.213; M.S.A. § 28.410 requires that the threat be made "to compel the person so threatened to do or refrain from doing any act against his will ". The phrase "against his will", as used in the context of the extortion statute, is defined in CJI 21:1:04 as follows:

"A person does an act or refrains from doing an act against his will when, with apparent willingness, he does the act with the understanding that thereby he will be saved from some personal injury to himself or a member of his immediate family or saved from personal disgrace, doing such act as the lesser of two unpleasant alternatives, notwithstanding the fact that he may mentally protest against the circumstances which compel the choice."

It must be concluded that the distinction made in Kruper, supra, is not helpful to the trier of fact in determining whether an extortion, or an unarmed[97 MICHAPP 674] robbery, has been committed. We therefore review the common law origins and statutory history of the two crimes in our search for a more tangible differentiation.

At common law, extortion was the unlawful taking by a public officer, under color of his office, of any money or thing of value that was not due to him, or more than was due, or before it was due. Hawkins, Pleas of the Crown, 418 (1787), Commonwealth v. Bagley, 24 Mass. (7 Pick) 279 (1828). Common law extortion was punishable as a misdemeanor.

Robbery, on the other hand, was a capital felony. Its difference from common law extortion has been described by modern commentators as follows:

". . . To obtain another's property by means of a threat of immediate bodily harm to the victim (or someone in his company) is robbery; and robbery is held to embrace also a threat to destroy the victim's home or a threat to accuse him of sodomy. That was, however, as far as robbery by threats went doubtless because the severe penalty for robbery, long a capital offense, restrained the courts from expanding robbery to include the acquisition of property by means of other effective threats-such as a...