Curg Burleson v. State

KRUEGER, Judge. The appellant was tried and convicted of the offense of threatening to inflict serious bodily injury with the intent of extorting money, and his punishment was assessed at confinement in the state penitentiary for a term of six years. Appellant’s first contention is that the evidence is insufficient to warrant and sustain his conviction. The testimony adduced by the State shows that on or about the 14th day of October appellant came to the home of Edward Clark, a negro, and accused him of having taken $30.25 from the person of appellant at a negro supper, and threatened to kill Edward *78 Clark unless he returned unto him said amount of money. Clark denied that he took any money from Burleson at any time or anywhere; that he did not even see appellant at the negro supper; that at the time appellant made the threat he, Clark, did not have any funds available, but promised to bring it to the appellant the next morning. This threat was made about five o’clock P. M. and on the next morning Clark, accompanied by Leroy Garner, went to the home of Henry Steptoe, where appellant was making his home, and delivered to appellant $15.00 as part of the amount demanded by appellant; that at a later date he gave some more money to him. We think that this testimony, if believed by the jury, is sufficient to sustain the conviction. Appellant takes the position that inasmuch as no weapon was used or exhibited in connection with the alleged threat and no money was obtained at that time, that the court should have granted his request for an instructed verdict. We do not believe that under the statute, art. 1268a, Vernon’s Ann. P. C., under which this prosecution was had, it was necessary that money be obtained at the very time the threat is made; nor was it necessary that a weapon be used or exhibited in connection "with such threat, because under such state of facts the case "would be one of robbery. We think that if a threat to kill or inflict bodily injury is made with the intent of extorting money, ;and as a result of such threat money is obtained (although it is not deemed necessary that money be obtained) from the yiarty threatened, whether it be immediately or at some future time, it is sufficient so long as the person threatened is laboring under the fear .of such threat. Appellant next complains that the court failed to affirmatively present his defensive theory, which he contends was raised by the following testimony: that some days prior to the time of the alleged offense Edward Clark borrowed from him the sum of $10.00; that Clark agreed to return it within a day or two; and after Clark had failed to return said money, appellant went to the home of Clark with the intent of collecting it; that at that time Clark claimed he did not have any money, but would bring it to him the next morning; that at no time had he threatened to kill Clark or do him serious bodily injury with the intent of extorting money. We do not believe that appellant’s testimony presents any affirmative defense. When it is analyzed and simmered down, it amounts to a mere denial that he had threatened to kill or inflict serious bodily injury upon Clark with the view of extorting money. It is *79 obvious that threats are the gist of the offense because if he obtained money from Clark by any other means or methods than threats, or if he collected money which Clark had borrowed from him without the use of threats, he would not be guilty of the offense charged. The court instructed the jury, in effect, that if they believed from the evidence that the defendant did not extort money from Edward Clark by threatening to take the life or inflict serious bodily injury upon the said Edward Clark, or if they had a reasonable doubt thereof, they should find the defendant not guilty. The court further instructed the jury: “* * * if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Curg Burleson, on or about the 14th day of October, A. D. 1934, in the County of San Augustine, State of Texas, did threaten to take the life of Edward Clark, and did threaten to inflict serious bodily injury upon the said Edward Clark for the purpose and with the view of extorting money from the person of the said Edward Clark, verbally, as charged in the indictment, then you will find the defendant, Curg Burleson, guilty as charged in the indictment and assess his punishment,” etc. We think that under the facts of this case, as the same appear in the record, that the court’s charge was sufficient to protect the appellant’s legal rights. All other matters complained of seem to be without merit and are overruled. 0 Finding no reversible error in the record, the judgment of the trial court is in all things affirmed. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.