State v. Cashman

• Decision Date: 15 February 1966
• Citation: 217 A.2d 28
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Wayne CASHMAN and Robert Lizotte.

Page 28

217 A.2d 28

STATE of Maine v. Wayne CASHMAN and Robert Lizotte.

Supreme Judicial Court of Maine.

Feb. 15, 1966.

Bernard R. Cratty, County Atty., Augusta, for plaintiff.

Warren E. Belanger, Fairfield, Charles N. Nawfel, Waterville, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.

WEBBER, Justice.

On exceptions to the refusal of the presiding justice to direct a verdict for the respondents. Trial by jury was upon an alleged violation of 17 M.R.S.A., Sec. 3701 which provides in part: 'Whoever makes publishes or sends to another any communication, written or oral, containing a threat to injure the person or property of any person shall be punished, etc.'

One Gilman, sole witness for the State, testified that he was served with a subpoena to appear before the Grand Jury 'to give evidence of what you know relating to a complaint now pending * * * against Robert Lizotte and Wayne Cashman * * * for the crime of Forgery and Uttering Forged Instrument.' Some time later and before his appearance in answer to the subpoena, he received a telephone call during the course of which he conversed with a person whose voice he recognized as that of respondent Lizotte. Gilman received another telephone call during which he talked with respondent Cashman. The witness stated that he and the respondents were well acquainted. Each respondent testified and admitted that he had a criminal record but denied categorically that the conversations related by Gilman ever occurred.

The gist of these two conversations (and of this case) is contained in the following excerpts from Gilman's testimony:

'He (Lizotte) said that he and Wayne would be kind of mad if I said anything about either one of them having anything to do with the checks, if I said anything in court against them. * * * And he said they both have a lot of friends in Waterville and if anything should happen they would take care of me. * * *.

He (Cashman) said to me that I had better not say anything about him or Robert (Lizotte) that would get them into trouble or that would put them in jail and that there was a lot of guys they know real well and they would hate to see him 'go back up river', as he put it, and that if he had to go it would not be for one year, it would be for a period of years and that they would see that I was taken care of.' (Emphasis ours.)

The jury could find that these conversations occurred substantially in the form as related by the witness. The issue is then whether or not the quoted language constitutes an oral threat within the meaning of the statute. We have as yet had no occasion to define the word 'threat' as used therein.

The word which most often appears in any definition of 'threat' is 'menace.' Wharton's Criminal Law and Procedure, Vol. III, Sec. 1398, page 796 states: 'This threat may consist in a menace of destruction or of injury to person, character, or property. It may be either oral or in writing. No precise words are necessary in order to constitute a threat amounting to blackmail. Such a threat may be by innuendo or suggestion, and the circumstances under which the threat is uttered and the relations between the parties may be taken into consideration. The threat must also be such as would ordinarily create alarm.' The definition of 'threat' given by 22 Am.Jur. 239, Sec. 20 is in very similar terms.

Words which in one context might be harmless and innocuous become menacing under other circumstances. Thus threats to 'get a rope' when...