State v. Debolt

• Decision Date: 17 December 1897
• Citation: 73 N.W. 499,104 Iowa 105
• Parties: STATE v. DEBOLT ET AL.
• Court: Iowa Supreme Court

104 Iowa 105

73 N.W. 499

STATE

v.DEBOLT ET AL.

Supreme Court of Iowa.

Dec. 17, 1897.

Appeal from district court, Guthrie county; J. H. Applegate, Judge.

The defendants, George Debolt and Walter Smith were convicted of the offense of maliciously threatening to accuse another of the crime of sodomy with the intent thereby to extort money; and from the judgment, which required that they be imprisoned in the penitentiary at Ft. Madison for the term of one year, they appeal. Reversed.F. O. Hinkson and Carr & Parker, for appellants.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

ROBINSON, J.

The indictment charges that the offense in question was committed as follows: “The said George Debolt and Walter Smith on or about the 10th day of October, A. D. 1894, in the county of Guthrie and state of Iowa, as aforesaid, the said George Debolt and Walter Smith acting together and in concert, did then and there, with malicious intent to extort money from one T. J. Simcoke, did then and there, maliciously and feloniously, verbally threaten to accuse the said T. J. Simcoke of the crime of sodomy” (describing the particular act of which the defendants threatened to accuse Simcoke). The indictment does not charge that Simcoke was not guilty of the act thus described, and the appellants insist that in that respect the indictment is defective. The statute upon which this prosecution was founded is section 3871 of the Code of 1873, which contains the following: “If any person, either verbally or by any written or printed communication, maliciously threatens to accuse another of any crime or offense, * * * with intent thereby to extort any money or pecuniary advantage whatever, * * * he shall be punished by imprisonment in the penitentiary not more than two years, or by a fine not exceeding five hundred dollars.” Nothing in this statute makes it necessary, in order to constitute the offense defined, that the person threatened shall be innocent of the crime of which he is threatened to be accused. It is said that the threat to accuse, in order to constitute an offense, must be made maliciously; that the court charged the jury that “ ‘malice,’ in a legal sense, denotes a wrongful act done intentionally, without just cause or excuse,” and that, if Simcoke was guilty of the act of which the defendants threatened to accuse him, the threat could not have been without just cause or excuse. It is further urged that it is the duty of every citizen to accuse the perpetrators of a crime, before the proper tribunal, and that to declare an intention to do an act which it is the duty of the declarant to perform cannot be a crime. All that may be conceded without admitting that the indictment is defective in the respect claimed. The crime for which the statute provides is not the declaration by a person of an intent to bring an offender against the law to justice, but the malicious threatening to accuse a person of a crime or offense, “with intent thereby to extort any money or pecuniary advantage whatever.” Whether the person against whom the threat is directed be guilty or innocent of the crime or offense specified in the threat is wholly immaterial to the commission of the crime by the making of the threat. State v. Waite (Iowa) 70 N. W. 596. The threat may be to accuse by instituting judicial proceedings. 1 McClain, Cr. Law, § 737. But it may also refer to accusation by means of newspaper publication, or other means. State v. Lewis (Iowa) 65 N. W. 295. It follows from what we have said that in our opinion the indictment is not defective in the respect claimed by the appellants.

2. The defendants asked the court to instruct the jury as follows: “(8) You are instructed that intent to extort money is a material part of the crime charged. This intent cannot be presumed, but must be established by the evidence to the exclusion of all reasonable doubt. The intent to extort money is the gist of the crime charged, and, before you can convict the...