Bush v. State

168 P. 508, 19 Ariz. 195, 1917 Ariz. LEXIS 79

• Court: Arizona Supreme Court
• Decided: November 8, 1917
• Docket: Criminal No. 418
• Status: Published

Opinion

EEANKLIN, C. J.

At a preliminary examination Asa Brown and William W. Bush were held to answer for the crime of extortion. They were tried jointly upon an information based upon facts coming within the provisions of paragraph 516 <ff the Penal Code, and convicted. Hence this appeal. The objection is urged that the information upon which the defendants went to trial does not state the same offense for which, on their preliminary examination, they were held to answer. Under the heading “Extortion,” in chapter 7, title 14 of the Penal Code of 1913, paragraph 512, the crime of extortion is defined to be the obtaining of property from another with his consent induced by wrongful use of force or fear or under color of official right. It is next provided in paragraph 513 that fear such as will constitute extortion may be induced by. a threat, either (subdivision 2, the only one applicable here) to accuse a person or any relative of his or member of his family of any crime. In paragraph 514 the punishment for the offense when accomplished under circumstances not amounting to robbery is fixed at imprisonment in the state prison not exceeding five years. Paragraph 516 under which the information is drawn provides:

“Every person who, by any extortionate means, obtains from another his signature to any paper or instrument; whereby, if such signature were freely given, any property would be transferred or any debt, demand, charge or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge or right of action were obtained.”

The common law confined extortion to the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. 8 R. C. L., § 315, p. 293. The Penal Code, however, has enlarged the scope of this offense so as not to confine the commission of it to those persons who act under color of official right. Under the statute we have a very comprehensive crime which is not restricted to the obtaining of property, but which includes within the express terms those cases where a person obtains from another with the latter’s consent, induced by wrongful use of force or fear or under color of official right, that person’s signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created. The obvious purpose of the statute is to make not only those who actually obtain property by extortionate means come within its purview, but to extend it also to those persons who by extortionate means obtain from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred.

It is urged that the court erred in sentencing the defendants to confinement in the state prison for the reason that the statute under which they were prosecuted does not provide for such punishment. The objection is made because in the last part of paragraph 516 the language reads, “ ... is punishable in the same manner as if the actual delivery of such debt, demand, charge or right of action were obtained,” omitting from the enumeration the word “property” used in the first part of the paragraph. It is clearly the intent of this statute to make the acts therein mentioned punishable in the same manner as if the property described in the instrument was actually obtained by extortionate means. The omission of the word “property” in this connection does not obscure the meaning of the statute in the least degree. Omitting the word “property” the language used describes the statute fixing the punishment with such certainty that there can be no doubt it is as clearly identified as if the legislature had said, “ ... is punishable as provided in paragraph 514.” The information is said to be defective because it does not set forth the bill of sale alleged to have been signed or account for such failure. The instrument alleged to have been signed is stated to be a bill of sale and the legal effect pleaded. It is not perceived that such omission tended in any way to the prejudice of the defendants.

(it is the duty of this court under the law to construe a provision of the Penal Code not technically, but according to the fair import of its terms, with a view to effect its object and to promote justice. So if an information can lawfully be upheld, the court should uphold it and not seek a strained view of the law to set it aside.

It is complained that the defendants were not permitted to show fully to the jury the character of the witness Arthur Sellick; that they should have been permitted to show that he had been arrested for vagrancy and the disposition of that case. The court allowed proof that Sellick had been arrested and convicted twice for vagrancy, that he had been arrested for bootlegging, white slavery, forgery, passing a cheek on a bank in which he had no funds, that he was a frequenter of the red light district in Winkelman. Not only as to this witness, but as to several of those for the defense, the record fairly reeks with the odor of the underworld, and the goings, comings and doings of habitues of the red light. The proper criticism is that the court placed no reasonable restriction on this class of testimony, allowing the attention of the jury to be distracted from the main issue. The multiplicity of these particulars should have been considerably abridged.

Arthur Sellick, who is the son of Mrs. Hannah L. Young, had forged the name of W. T. Armstrong to a cheek for $20. The defendant Bush was the marshal of the town of Winkelman, and at his request defendant Brown had arrested Sellick on this charge of forgery. On the night of November 30, 1915, the defendants Bush and Brown went to Mrs. Young’s house with Arthur Sellick in custody. Mrs. Young knew that her son had forged Armstrong’s name to a check. When Brown and Bush arrived at the house with Sellick they found Mrs. Young in her bedroom sick in bed. Mrs. Young is about fifty-five years of age, and appears to be an invalid suffering with nervous prostration. The defendant Bush informed Mrs. Young that her son was under arrest, and said it had to be settled that night; that Mr. Ming would take twenty-five head of cattle at thirty dollars a head, and he [Bush] would make out a bill of sale. Mrs. Young did not want to sell Ming any cattle. Bather than do so she would get up and dress and go over to see Luke Beay that night, and whatever money was necessary she would get it from him. She did not want Ming to have the cattle. She told Bush she could not give the bill of sale. Bush told her she need not mind about that because she could come and redeem the bill of sale, but if she refused to sign the bill of sale that night her son would be put over the road; Fearing this, Mrs. Young signed and acknowledged the bill of sale which had been drawn up by defendant Bush.

No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it. All that is necessary is that the alleged threat be definite and understandable to the mind of ordinary intelligence. It is absurd to contend that a threat to accuse one of crime must contain all of the statutory elements for the offense with which the party expects to charge another. If such were the rule the operation of the statute would be practically suspended. It is impossible to come to the conclusion that the language used was not such as Mrs. Young might fairly interpret as a threat to accuse her son of the crime of forgery, unless she signed the bill of sale, and that she did not through fear induced by such threat finally execute the instrument.

"What took place next morning when Mrs. Young went to the office of Bush with $750 to redeem the bill of sale was material testimony. She paid the money to Bush and demanded the return of the bill of sale. Bush took the money and refused to give her the bill of sale, saying it was no longer any good; he tore it into pieces and burned them in the stove. The court instructed the jury that it made no difference who actually received the $750. It is claimed the instruction deprived defendants of the benefit of their entire defense. We find no fault with this instruction whether it relates to the money paid by Mrs. Young to Bush to redeem the bill of sale, or whether it relates to the $750 which the witness Ming says he advanced to Arthur Sellick with the understanding that the latter would get his mother to execute a bill of sale of thirty head of cattle to repay the money so advanced.

Much of the record is devoted to a series of previous transactions wherein Bud Ming had advanced various sums of money to this Arthur Sellick, who is characterized by the defendants as an idle, vicious, and dissolute person unworthy of belief, and it is shown that his mother had always come to his assistance. Grant all this to be true, it is no defense on the part of Brown and Bush. It only emphasizes the love of a mother for her boy, and perhaps that this boy was a willing party in many instances to extort property from his mother. But however unworthy he may have been of her affection, it is the nobility of womanhood to help the weak and distressed. She may glow with pride for the vigor and character of her offspring, but the intensity of her love and care will burst aflame for the weak one. The mother is ever ready to kill the fatted calf for her prodigal son. This instinct to protect, stronger even than her own self-preservation, is implanted in the mother to sustain and advance the race. The more the shame then and the moral turpitude on the part of these defendants in going to this old lady under these circumstances. They found her sick in bed, and observed her tom between two desires — one to save her property, and the other to protect her boy against his folly and dissipation. They then played upon the latter feeling to extort from her the bill of' sale.

The crime charged did not consist in the dealings that Ming had with Arthur Sellick, hut in the extortionate means which Bush used to get Mrs. Young’s signature to the conveyance, and in which he was knowingly aided and abetted by Brown. Arthur Sellick may have been guilty of the crime of forgery, his career of folly may have been advanced by Ming loaning him money to dissipate. Bush and Brown may have been justified in arresting him for forgery. They may have honestly believed that their friend Ming had loaned Arthur Sellick $750 on a promise of the latter to get a bill of sale from his mother for thirty head of cattle. Bush and Brown may have considered that Mrs. Young was morally bound to execute the bill of sale to Ming. Granting all this, it is no justification whatever for the conduct of Bush and Brown in making the threat to Mrs. Young. The gist of the offense is the obtaining of the bill of sale by extortionate means. Not in making the charge of forgery against the son and having him under arrest, but in threatening the mother that unless she signed the bill of sale her son would be prosecuted upon such charges and in getting her signature to the paper because of a fear induced by the threat. If these defendants obtained Mrs. Young’s signature to the instrument through fear induced by a threat to accuse her son of a crime, it was obtained by the wrongful use of fear as defined by the statute.

Errors are assigned because the court failed to instruct the jury as to certain matters. Mere nondirection by the court below affords no ground for reversal, where a proper instruction covering the point was not requested and refused. Vincent v. State, 16 Ariz. 297, 145 Pac. 241.

Objection is made because the court attempted to define the expression “reasonable doubt.” Among other things, the court said it is a “serious, substantial doubt.” In the absence of a request tendering a proper instruction, it was unnecessary to attempt to define the expression, because it is commonly understood. The expression was invented by- great common-law judges as one most simple in its appeal to the understanding of men of ordinary intelligence. Chamberlayne says:

“Usually such attempts at explanation tend rather to confuse and bewilder than to clarify.”

If the attempt of the trial judge had any tendency at all it was to render an understandable expression vague and obscure, and perhaps implied a stronger doubt than the law requires. However, it does not appear to have been prejudicial, because there is no sense to the explanation, nothing but a mere jingle of words, and as the jury could not have understood it, therefore they could not have been misled by it. Wigmore has observed well that these attempted definitions are unserviceable except to aid the purposes of the tactician in the reversal of cases. When a trial court is called upon to explain the expression it is better to follow a well-established and approved one. Roberts v. State, 17 Ariz. 159, 149 Pac. 380.

Objection is made because the jurors were told that the presumption of innocence remains with the defendants throughout the ease “or until such time in the progress of the case as you may be satisfied of their guilt beyond a reasonable doubt.” Here again there is palpable error. The presumption of innocence remains throughout the ease and until it is finally submitted to the jury and by the return of their verdict the defendant is found guilty. But here again we do not think it reversible error. At each recess the trial court admonished the jury not to form or express any opinion with reference to the ease, nor come to any conclusion with reference to it until the case is finally submitted. Because of these repeated admonitions, this erroneous instruction at the end of the trial could not have misled the jury. Other errors committed by the trial court have been called to our attention.

These 30 assignments have each been carefully examined in the light of the record presented, and the separate consideration of each one would extend this opinion far beyond what is justifiable. Without more particular discussion, o,ur conclusion is that the errors made are not such as would jusT tify this court in saying that a miscarriage of justice has occurred. The Constitution commands this court not to reverse a cause when upon the whole case substantial justice has been done. A conscientious effort to follow the spirit of this constitutional admonition is often attended with perplexity because of errors committed in the trial of a cause more or less vital in their bearing in the case. Judges are fallible, and it is to be expected that error will occur however erudite and painstaking the judge may be, but it is not hypercritical to say that in some instances error is so manifest as easily to have been avoided by a little more care and attention on the part of the presiding judge. Obviously it is a delicate duty for an appellate court to say how far a jury may have been controlled in their verdict on this account, and to mark the lines wherein such errors do or do not affect a substantial right, or do or do not deprive a defendant of that fair and impartial trial which the law guarantees to each one .charged with the commission of crime, and this without regard to his station or condition, the character of the crime imputed against him, or the state of public sentiment in his disfavor.

With respect to the line which separates prejudicial from nonprejudicial error, it may never be completely or satisfactorily settled, but only in each case as the question maj^ arise and as the capacity of the particular court may be equal to the occasion of ascertaining when substantial justice has been done. Bearing in mind this duty to be performed, the record presented has been scrutinized, and we are persuaded that had the record been free of the errors suggested for reversal the verdict of the jury would not have been otherwise. In this case, the evidence in behalf of the state, if believed by the jury, is clear and convincing that the defendants are guilty of a most reprehensible crime in getting by extortionate means the bill of sale from this practically helpless old lady, and it required no close reasoning upon their part to come to the conclusion of the defendants’ guilt.

It is, therefore, upon consideration of the whole case that the judgment must be affirmed; and it is so ordered.

CUNNINGHAM and BOSS, JJ., concur.

Authorities discussing the question as to whether efforts to collect debt is extortion aTe collated in notes in 18 L. R. A. (N. S.) 77, L. R. A. 1915B, 1140.