State v. Schultz

Decision Date08 January 1908
Citation135 Wis. 644,114 N.W. 505
CourtWisconsin Supreme Court
PartiesSTATE v. SCHULTZ.

OPINION TEXT STARTS HERE

Error to Municipal Court of Milwaukee County; Alvin C. Brazee, Judge.

Frank F. Schultz was convicted of crime, and brings error. Reversed and remanded.

This case comes here on writ of error to the municipal court of Milwaukee county. The plaintiff in error, hereinafter called the defendant, was convicted under section 4380, St. 1898, on the 29th day of June, 1907, and sentenced to pay a fine of $500 and costs, and, in default thereof, be imprisoned in the House of Correction of Milwaukee county for a period not exceeding one year. Section 4380, St. 1898, provides: “Any person who shall, either verbally or by any written or printed communication, maliciously threaten to accuse another of any crime or offense, or to do any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will or omit to do any lawful act, shall be punished by imprisonment in the state prison not more than two years nor less than one year or by fine not exceeding five hundred dollars nor less than one hundred dollars.” The indictment set up that one Edward F. Strauss was a member of the county board of supervisors of Milwaukee county, and that the awarding of a contract to Allen's Cornice & Corrugating Works was pending before the board, and that the board awarded the contract to said Allen's Cornice & Corrugating Works; that the defendant, knowing the facts and being a newspaper reporter, knowingly and maliciously threatened to accuse Strauss of having theretofore committed the crime of bribery; that the threat was substantially as follows: “I know you had a corrupt agreement with the Allen's Cornice & Corrugating Works, and that you voted corruptly to allow them the contract for the repairing and replacing of the roof and gutters on the old county hospital building, and, if you do not give me fifty dollars, I will expose you and open up on you by putting a line in the paper tomorrow.” The threat, it is alleged, was made with intent on defendant's part corruptly to extort from Strauss the sum of $50, and to compel him to do an act against his will; that defendant did by said threat further maliciously threaten to injure the person, property, business, and calling of said Strauss, and to damage and destroy his business, he being a member of the county board and engaged in the liquor and restaurant business; that by reason of said threat, and to prevent the threatened injury, Strauss paid defendant $50, and defendant did corruptly and extorsively demand and receive the same. The defendant pleaded not guilty, and on the opening of the trial moved that the state be required to elect upon which part of the indictment it would prosecute, and at the close of the state's case, and also at the close of all the evidence, moved for dismissal, which motions were denied. At the close of the evidence on the part of the state the court allowed the indictment to be amended to conform to the proof. Motions for new trial and in arrest of judgment were denied, and the defendant assigns error.James L. O'Connor and Thomas M. Kearney, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and Francis E. McGovern, Dist. Atty. (W. A. Hayes, Asst. Dist. Atty., of counsel), for the State.

KERWIN, J. (after stating the facts as above).

Several errors are discussed in the briefs of counsel, and such of them as are regarded necessary to be treated will be considered.

1. At the opening of the trial defendant moved the court to require the state to elect upon which branch of the indictment it would prosecute, and the denial of this motion is assigned as error. This error is claimed upon the ground that the indictment sets forth several separate offenses not properly joinable. The objection is not very strenuously urged by counsel for defendant, and we think it untenable and regard it unnecessary to consider it in detail. The indictment contains but one count, though several violations of the statute are alleged in the conjunctive; hence the motion to compel the state to elect was properly denied.

2. The main contention of counsel for defendant is that the indictment charged no offense, that it was error to allow an amendment of it, and that the evidence is insufficient to sustain the charge laid in the indictment. The indictment, in addition to the formal parts, alleged in apt words covering the language of the statute that the defendant feloniously, knowingly, unlawfully, and maliciously did verbally threaten the said Strauss that defendant would accuse him of having committed the crime of bribery by accepting from the Allen's Cornice & Corrugating Works a large sum of money, and setting forth the facts in relation thereto and the threat made, and further by verbal threats maliciously threatened to wrongfully injure the person, property, business, and calling of said Strauss, and to injure, damage, and destroy the business of said Strauss and prevent him from successfully carrying on his business, and to cause delay and ruin to the same, in consequence of which threats and for the purpose of preventing the carrying out of the same Strauss did, against his will, pay $50 to defendant, which was corruptly and extorsively demanded. We have only stated briefly such part of the indictment as will make clear the points of attack upon it. In order to determine the sufficiency and scope of the indictment, consideration of the statute upon which it is based will be necessary. This statute is violated by maliciously threatening verbally or in writing to accuse another of any crime or offense, or by maliciously threatening verbally or in writing any injury to the person, property, business, or calling of another, with intent to extort money or any pecuniary advantage, or with intent to compel the person so threatened to do any act against his will or omit to do any lawful act. The threats may be classified under two heads, namely: First, a threat to accuse of a crime or offense; and, second, a threat to do an injury to the person, property, business, calling, or trade or profits and income of any business, profession, calling, or trade of another. These threats must be, by the terms of the statute, with intent to extort money or pecuniary advantage or to compel the person so threatened to do an act against...

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  • Com. v. Miller
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 9, 1981
    ...which was made unlawful by a State extortion statute. See, e.g., State v. Simmons, 114 R.I. 16, 327 A.2d 843 (1974); Schultz v. State, 135 Wis. 644, 114 N.W. 505 (1908); Annot., 74 A.L.R.3d 1255 (1976); Note, A Rationale of the Law of Aggravated Theft, 54 Colum.L.Rev. 84, 89 We do not find ......
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    • Wisconsin Supreme Court
    • April 5, 1921
    ...jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, jeopardy has attached. Schultz v. State, 135 Wis. 644, 114 N. W. 505, 116 N. W. 259, 571;McDonald v. State, 79 Wis. 651, 48 N. W. 863, 24 Am. St. Rep. 740;State v. Parish, 43 Wis. 395. “Sec. 4645a. A......
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    • United States
    • Wisconsin Supreme Court
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    ...in former opinion modified, and judgment below reversed, and cause remanded with directions to discharge accused. For former opinion, see 114 N. W. 505. Timlin, J., dissenting.KERWIN, J. A rehearing was ordered in this case upon certain questions submitted. The original opinion of the court......
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