State v. Louanis

Rowell, C. J. This is an indictment for threatening to accuse one Tarbox of adultery, with intent to extort money from him. Pending the plea of not guilty, the prisoner moved to quash the indictment because it did not set out the year when it was found, and was not dated, and because it did not appear on its face when the grand jury was impanelled. We do not consider whether the motion could be interposed pending the plea, for such a motion is not a right, but is addressed to the discretion of the court, and hence its action thereon is not revisable here. State v. Stewart, 59 Vt. 273, 284, 9 Atl. 559; Bishop’s New Crim. Proceed. §761. After the jury was impanelled and before any evidence was given, the prisoner objected to the admission of any evidence, for that the indictment was insufficient for the reasons stated in the motion to quash. But this objection could not avail him, for having joined issue by his plea of not guilty on the allegations of fact in the indictment, any evidence pertinent to the issue was admissible. Barney v. Bliss, 2 Aik. 60; Chase v. Holton, 11 Vt. 347; Briggs v. Mason, 31 Vt. 438, 439; Newman v. Wait, 46 Vt. 689. The objection to evidence because the indictment did not show that the crime was committed in the county nor even in [467] the State, is disposed of on the same ground. The prisoner should have raised the question by a motion in arrest. The testimony offered to show that the prisoner made similar threats to others, was admissible, to show that the threats charged were made with the intent alleged. Mr. Williams testified for the State to- a conversation with the prisoner about the matter charged. The prisoner claimed that the conversation was privileged, as he understood at the time that Williams was his attorney. To determine the question of privilege, Williams was given a- preliminary examination at the request -of the prisoner, but at which he did not testify nor offer to- testify. The court found from Williams’s testimony, and rightly, that the relation of attorney and client did not exist, and Williams was permitted, to- testify. When the prisoner took the stand in defence, he offered to testify that he understood that Williams was his attorney. But the competency of Williams having been inquired into and passed upon and his testimony admitted, it was discetionary with the co-urt whether to reopen the question and admit the testimony ; and it properly exercised that discretion by excluding it, which is not the subject of exception. The other objections to Williams’s testimony are not sustained. We cannot hold that a threat of accusation otherwise than by course of law, is not within the statute. The statute is aimed at blackmailing, and a threat of any public accusation is as much within the reason of the statute as a threat of a formal complaint, and is much easier made, and may be quite as likely to- accomplish its purpose. There is nothing in the statute that requires such a restricted meaning of the word “accuse”; and to restrict it thus, would well nigh destroy the efficacy of the act. There are, seemingly, but few cases on this question, [468] and those to which we are referred are not so very much in point, because of the difference between the statutes there involved and our statute; but they may be referred to for what they are worth. Rex v. Robinson, 2 Moody & Rob. 14; Regina v. Redman, 10 Cox C. C. 159 ; People v. Braman, 30 Mich. 460, where the question is discussed pro and con but not decided; People v. Frey, 112 Mich. 251, where it is alluded to but neither discussed nor decided; State v. Lewis, 96 Iowa 286; and State v. Debolt, 104 Iowa 105. The prisoner excepted to the refusal of the court to charge that the threat must be such as to- overcome the will of an ordinarily prudent man, and to the charge as given on that subject. The court left it to- the jury to say whether the threat was calculated to- disturb and unsettle a man’s mind and give anxiety; whether it was calculated to- disturb a man and unsettle him — overcome his mind. This fulfilled the requirement of the law. A threat is well defined to' be a menace of such a nature as to- unsettle the mind of the person on whom it is intended to- operate, and to take away from his acts that free, voluntary action which alone constitutes consent. 28 Am. & Eng. Enc. Law, 2d Ed., 141. Bouvier says that the threat must be such as to operate to some extent, at least, on the mind of the one whom it was intended to- influence. It was not necessary for the court to' define “extort” to the jury. It is a common word, used in the statute in its-ordinary sense, and the court might well assume that the jury understood it. Judgment that there is no error in the proceedings of the county court, and that the prisoner take nothing by his exceptions.