State v. Wilbourn

• Decision Date: 11 December 1934
• Docket Number: No. 42487.,42487.
• Citation: 257 N.W. 571,219 Iowa 120
• Parties: STATE v. WILBOURN.
• Court: Iowa Supreme Court

219 Iowa 120

257 N.W. 571

STATE

v.WILBOURN.

No. 42487.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Cass County; Earl Peters, Judge.

The defendant was indicted and convicted in the court below on the charge of malicious threats to extort. The defendant appeals.

Affirmed.G. C. Dalton and R. W. Cockshoot, both of Atlantic, for appellant.

Edward L. O'Connor, Atty. Gen., and Walter F. Maley, Asst. Atty. Gen., for the State.

KINTZINGER, Justice.

The indictment filed against defendant is as follows: “The Grand Jurors of Cass County * * * accuse Rollie Wilbourn of the crime of malicious threats to extort and charge that * * * Rollie Wilbourn * * * did unlawfully and maliciously do injury to * * * T. T. Saunders with intent to extort money from * * * said Saunders. And to compel said Saunders by threat and injury to pay over to one Chris Christensen a sum of money against the will of said Saunders. On or about February 6, 1933, in the Town of Anita, Cass County, Iowa, and did then and there extort the said money from * * * the said Saunders by force and by threats.” (Italics ours.)

The indictment is based upon section 13164 of the Code, which is as follows: “ Malicious Threats to Extort. 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 to extort any money or pecuniary advantage, * * * or to compel the person so threatened to do any act against his will, he shall be imprisoned,” etc.

Defendant filed a demurrer to the indictment, which was overruled by the court. The case was then tried to a jury. At the conclusion of the trial, defendant moved for a directed verdict. This motion was overruled, and the case submitted to the jury, resulting in a conviction, from which defendant appeals.

I. It is contended that the court erred in overruling the demurrer because (1) the indictment does not charge the defendant with threatening to accuse Saunders of any crime or offense, and (2) because it contains no charge that the defendant threatened to do injury to Saunders with intent to extort money or pecuniary gain, and (3) because it contains no charge that the defendant threatened to compel Saunders to do any act against his will.

[1][2] It has been held that section 13164 defines more than one separate offense. State v. Young, 26 Iowa, 122;State v. McGlasson, 88 Iowa, 667, 56 N. W. 293;State v. Debolt, 104 Iowa, 105, 73 N. W. 499;State v. Essex, 217 Iowa, 157, 250 N. W. 895. It has also been held that it is proper to charge the commission of the crime in any one or all of the methods defined by statute. State v. Browning, 153 Iowa, 37, 133 N. W. 330;State v. Essex, 217 Iowa, 157, 250 N. W. 895.

[3] It is claimed that none of the offenses defined by this statute are charged in the indictment. It is true that the indictment does not charge that the defendant threatened to accuse another of a crime, but the failure of the indictment to make this accusation is not fatal, if it includes any other offense defined by the statute. It is contended by appellee that it does substantially charge the defendant with threatening to do injury, and charges him with having done injury to one Saunders, with intent to extort a payment of money from him; it also charges the defendant with threatening to compel Saunders to pay over a sum of money to one Christensen, against Saunders' will, and that he did extort said money from Saunders by force and by threat.

Section 13732-c2 provides that: “The indictment * * * is valid and sufficient if it charges the offense * * * in one or more of the following ways: 1. By using the name given to the offense by statute. 2. By stating so much of the * * * offense, * * * in terms of the * * * statute defining the offense, or in terms of substantially the same meaning, as is sufficient to give the court and the accused notice of what offense is intended to be charged.” (Italics ours.) Section 13732-c3 provides that no indictment charging an offense in accordance with section 13732-c2 shall be held insufficient because it fails to state the particulars of the offense.

[4] While the language used in the indictment does not state the offense in the exact terms of the statute, and while it may not be a model of correctness, it does (1) use the name given to the offense by statute, and (2) it does in terms of substantially the same meaning charge the unlawful and malicious threats of injury to Saunders with intent to extort money from him, and to compel him, by threats, to pay over to one Christensen a sum of money against his will.

Appellant relies upon State v. Goldenberg, 211 Iowa, 234, 233 N. W. 66, and State v. Essex, 217 Iowa, 157, 250 N. W. 895, as supporting his contention that the indictment fails to accuse him of any of the charges defined by statute. An analysis of these cases shows that appellant's contention is not supported thereby. In State v. Goldenberg, supra, the indictment was held not sufficient because it failed to state the name of the party to whom the threats to extort were made. In State v. Essex, supra, one of the offenses submitted to the jury was not contained in the indictment.

It is clear from a reading of the indictment in this case that it does substantially charge the offense of threatening to do injury to the person of T. T. Saunders with the intent to extort money from him, and that he was compelled by threats to pay over money against his will. As such acts are included in the offenses set out and defined by section 13164, the indictment must be held good. State v. Essex, 217 Iowa, 157, 250 N. W. 895. It can hardly be claimed, from a reading of the indictment, that the appellant was not sufficiently informed of the offense charged against him. This conclusion has support in the following cases: State v. Schuling, 216 Iowa, 1425, 250 N.W. 588;State v. Harness, 214 Iowa, 160, 238 N. W. 430;State v. Solberg, 214 Iowa, 333, 242 N. W. 84;Deemy v. Dist. Court of Dallas County, 215 Iowa, 690, 246 N. W. 833;State v. Engler, 217 Iowa, 138, 251 N. W. 88.

II. It is next claimed that the court erred in overruling defendant's motion for a directed verdict on the ground that there was not sufficient evidence to show that any threats were made by the defendant to extort money from the prosecuting witness. The prosecuting witness, Saunders, was the owner of a farm leased to a man named Christensen. Litigation between the landlord, Saunders, and the tenant, Christensen, over farm matters, was pending in a justice court at Anita. The case had been set for trial on February 6, 1933. The evidence also tends to show that between 50 and 100 farmers of that community took sides with the tenant in that litigation, and came to Anita on the day set for trial. The evidence shows when the farmers arrived at Anita the defendant, Wilbourn, called at the office of the justice of the peace, before whom the case was pending, and was advised that the case had been postponed. This information was conveyed to the farmers,who had come to attend the trial. The evidence tends to show that thereupon the defendant and a number of these farmers attempted to call upon Mr. Saunders at the hotel in Anita, for the purpose of forcing a settlement of the lawsuit. Saunders testifies that he saw the defendant on Main street; that he had no conversation with him there, but went to the hotel. He said that “on going into the hotel Mr. Wilbourn said he wanted to see me and was hollering at me. Two other men were with Wilbourn and came into the hotel”; that at that time Wilbourn grabbed him by the shoulder and said, “God damn you, we want you.” The two other men were with him when he said that. The evidence also tends to show that, when Saunders went into the hotel, there was a crowd of people in the street in front of the hotel. Saunders says that one of the other men also grabbed him, and that Mrs. Clark, who ran the hotel, intervened and told him to let Saunders alone. Saunders further says that he then started up stairs and “Wilbourn grabbed me by the shoulder and said ‘It is you we want.’ I got loose, and two other men grabbed for me and Mrs. Clark got between us. The others cussed and swore.” Saunders also said: “When I was trying to get the sheriff, they came to the back door and tried to come in.” At that time Saunders grabbed a stove poker, and said: “I told them not to come in * * * and they said ‘by God, we will come in.”’ Saunders also testified that, when Wilbourn grabbed him the first time, a button on his sleeve hit him in the eye; that his eye was injured for about three weeks. Defendant himself admitted that he laid his hands upon Saunders and told him he had better talk to these people.

Saunders further said: “After the sheriff came they said they were going to make me settle with Mr. Christensen. If I did not, they were going to get me; and I objected to settling, and I said I had a right to a trial. They then said ‘you aren't going to have any trial. We're going to make you settle this day.’ I didn't want to settle and they were getting very rabid and said ‘get a rope,’ and then I said I would settle. * * * I then put the money and papers in Mr. Ziegler's hands. Mr. Ziegler was Mr....