State v. Essex, 41327.
| Citation | 217 Iowa 157,250 N.W. 895 |
| Decision Date | 14 November 1933 |
| Docket Number | No. 41327.,41327. |
| Parties | STATE v. ESSEX. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
The defendant was convicted in the court below and appeals.
Reversed.Guy S. Calkins and C. Edwin Moore, both of Des Moines, for appellant.
Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and Carl Burkman, Co. Atty., of Des Moines, for the State.
The indictment in this case is based upon section 13164 of the Code of 1931, and is as follows:
“The Grand Jury of the County of Polk, in the State of Iowa, accuse L. J. Essex and Harry W. Noah of making malicious threats to extort money, and charge that L. J. Essex and Harry W. Noah on or about the first day of May, A. D., 1931, in the County of Polk, in the State of Iowa, did wilfully, maliciously and feloniously threaten to do injury to the person of Walter Dobbins by threatening to forcibly arrest and place in jail said Walter Dobbins with the intent then and there on the part of L. J. Essex and Harry W. Noah to extort money from the said Walter Dobbins, aforesaid.
Said indictment was filed in the office of the Clerk of the District Court of Polk County, Iowa, on the 12th day of June, 1931.”
The aforesaid section constituted section 2590 of the Code of 1851 and has never been amended in any particular. It reads as follows:
“If any person either verbally or by any written or printed communication maliciously threaten to accuse another of a crime or offense or to do any injury to the person or property of another, with intent thereby to extort any money or pecuniary advantage whatever or to compel the person so threatened to do any act against his will, he shall be punished by imprisonment in the penitentiary not more than two years or by fine not exceeding five hundred dollars.”
A motion for a directed verdict was overruled at the close of the state's evidence. Error in this ruling is assigned. The major propositions relied upon, however, for reversal are predicated upon alleged error in the court's charge to the jury.
[1] As interpreted by this court, section 13164 of the Code defines two separate and distinct crimes; that is, the crime of malicious threats to extort money and the crime of malicious threats to compel a person to do an act against his will. State v. Young, 26 Iowa, 122;State v. McGlasson, 88 Iowa, 667, 56 N. W. 293;State v. Waite, 101 Iowa, 377, 70 N. W. 596;State v. Todd, 110 Iowa, 631, 82 N. W. 322;State v. O'Mally, 48 Iowa, 501;State v. Debolt, 104 Iowa, 105, 73 N. W. 499.
[2] The crime charged in the indictment in the present instance is that of malicious threats to extort money. Although some of the elements of the crime of malicious threats with intent to compel another to do an act against his will are included in the indictment, this does not render it bad for duplicity. It was proper to charge the crime to have been committed in any or all of the methods defined by the statute. State v. Lewis, 96 Iowa, 286, 65 N. W. 295;State v. Browning, 153 Iowa, 37, 133 N. W. 330.
[3][4] Appellant concedes that the crime of malicious threats to extort money is properly pleaded. Paragraphs 5 and 6 of the court's charge to the jury are as follows:
“Instruction No. 5. If you find beyond a reasonable doubt that in this county and state and within three years next preceding the finding of the indictment, to-wit, June 12th 1931, the defendant, L. J. Essex, did maliciously threaten Walter Dobbins as substantially charged in the indictment and with the intent on the part of the said defendant to extort money from the said Walter Dobbins so threatened, and to compel the said Walter Dobbins to do an act against his will as charged in the indictment, then you should find the defendant guilty as charged, but if...
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