Kosier v. State

Humphreys, J. Appellant was indicted, tried, and convicted of the crime of nightriding, in the circuit court of Little River County, and adjudged to serve one year in the State Penitentiary as punishment therefor. Omitting the caption and signature of the prosecuting attorney, the indictment is as follows: “The grand jury of Little River County, in the name and by the authority of the State of Arkansas, accuse E. L. Rosier of the crime of nightriding committed as follows, to wit: The said E. L. Rosier, in the county and State aforesaid, on the 22d clay of September, 1923, did unlawfully and feloniously .deliver and repeat a verbal message, purporting to come from an organized band or members thereof, which, in its substance and nature, was intended to intimidate and threaten one Maloy Waddell, to whom said message was delivered, against the peace and dignity of the State of Arkansas.” A demurrer was filed to the indictment upon the ground that it did not state sufficient facts to charge appellant with the crime of nightriding. The court overruled the demurrer, to which ruling appellant objected and excepted. Appellant contends for a reversal of the judgment because the court overruled the demurrer to the indictment. The indictment was drawn under the last clause of § 2797 of Crawford & Moses’ Digest, which is as follows: “* * * or who shall deliver or repeat any verbal message purporting to come from any such organized band, or any member or members therebf, which, in its substance or nature, is intended to intimidate or threaten any person, shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary for a term of not less than one nor more than seven years.” It will be observed by reference to the indictment that it is couched in substantially the language of the statute. In charging statutory crime this is all that is. necessary. Wolfe v. State, 107 Ark. 33; Gramlich v. State, 135 Ark. 243; Wald v. State, 136 Ark. 372; State v. Western Union Tel. Co., 160 Ark. 444. Appellant also contends for a reversal of the judgment upon the ground that the evidence is insufficient to make out a case under the statute. The statute upon which the indictment is founded is directed at any one who delivers or repeats a threatening or intimidating verbal message to another, purporting to come from two or more persons confederated or banded together for unlawful purposes, or which, by sending an intimidating or threatening message or letter, has become an unlawful organization' or body of persons. The evident intent and purpose of the statute was to prevent any one from carrying- threatening or intimidating messages from organizations or members thereof, confederated together in the first instance for unlawful purposes, or who have converted themselves into unlawful organizations by sending threatening or intimidating messages. In the ease of a message or letter coming or purporting to come from a band or body of persons, which has not been proved to have been organized in the beginning for an unlawful purpose, a conviction could be had if it is shown that the message or letter, or the purported message or letter, contained language which, in its common acceptation, was calculated to intimidate a person of ordinary intelligence and courage. The record in the instant case reveals that E. L. Kosier, the appellant, who had had trouble with his wife, went to the home of Maloy "Waddell and delivered the following message to him: .“There were two cars of Ku Klux came to my house last night and gave me orders to come over here and make you come clean with me.” The purpose of the message, according to the testimony of Maloy "Waddell, was to obtain a written statement from him as to whether he (Waddell) or Mrs. Kosier was to blame for the disagreement and separation of Kosier and his wife. The prosecuting attorney admitted, and the undisputed evidence showed, that the Ku Klux Klan was organized for lawful purposes. While the message which was delivered was in the nature of a demand, it contained no threat. A message of this character purporting to come from a band or organization confederated together for lawful purposes could not have the effect of intimidating’ a person. Intimidation is the gist of the offense, and there is, an entire absence of proof tending to show that the Ku Klux Klan was organized for unlawful purposes, or that the purported message was in its nature threatening or intimidating. It was in the nature of a demand, but contained no threat or language implying punishment upon the failure to comply with it. The court should have sustained appellant’s demurrer to the testimony and instructed a verdict of not guilty. On account of the court’s refusal to do so, the judgment is reversed, and the cause dismissed. The Chief Justice and Mr. Justice Smith dissent.