Criminal Circuit Court, a new indictment was returned charging the same offense, and as having been committed upon the same person. Trial thereon, conviction, and sentence of imprisonment in the State prison. This judgment of conviction was reversed at the November term, 1876, of this court, for errors occurring at the trial of the cause.1 At the June term, 1877, of the Marion Criminal Circuit Court, a nolle prosequi of the indictment in the case was entered by the court, with the consent of the prosecuting attorney. Afterward, at the same term, the nolle was set aside. On the 29th day of December, 1877, the cause was stricken from the docket, with the consent of the court and the prosecuting attorney. On the 14th day of May, 1878, à motion was made to reinstate said cause on the docket, and set it down for trial; and on the 17th of May aforesaid the court sustained said motion "to reinstate this said cause upon the trial docket," etc. Afterward, on the 10th day of August, 1878, the cause came on for trial, before a jury duly impaneled to try the same, who found a verdict of guilty, etc., "and that he" (the defendant) "be fined in the sum of one dollar, and be imprisoned in the State prison for a period of one year." A motion for a new trial was overruled, and judgment and sentence entered upon the verdict.

On the trial, the court instructed the jury that: "The guilt or innocence of the defendant, upon the charge for which he is now being tried, does not depend on the question whether he seduced said Nellie Deloss, or was guilty of adultery with her or not; but you may consider the facts as to this, like all other facts in evidence, as bearing on the question of punishment, if you find him guilty."

2

Adultery, fornication, and seduction may each be crimes in this State, and punished as such. Our constitution forbids that a man shall be punished twice for the same offense. But if, on an indictment for the offense of blackmailing, you may inflict punishment for the crime of seduction, as well as for that of blackmailing, you may put the defendant in jeopardy twice for the same offense; that is, you may punish twice for one and the same offense.

That

Counsel for the appellee, without conceding anything on the point, say: "If there was error in instruction number seven and one-half " (the one we have quoted), "the defendant can not complain. part of it, which says that the question as to whether he seduced Nellie Deloss or not, can be taken into consideration in fixing the punishment, if they should find him guilty, did him no harm, as they gave him the lowest penalty provided by law."

1 Kistler v. State, 54 Ind. 400.

22 Rev. Stats. 1876, p. 431, sec. 15, and p. 446, sec. 21.

Smith, with the intent to commit theft. A term of two years in the penitentiary was the penalty imposed.

J. L. Smith was the first witness for the State. He identified the defendant on trial as Edgar Ross, the party charged in the indictment. About two years prior to this trial, the witness was operating a steam grist mill at his mill property in the town of Huntsville, and at the same time a kind of junk business, buying old scraps of brass, iron, rags and bones. His mill was near the railroad depot, fronting on a public street in the town of Huntsville, and on the railroad's right of way. On one occasion the witness missed a brass kettle, a brass "bearing," and other articles including a brass pump, from his mill. These articles belonged to the witness, and were taken without his consent.

J. D. Clarke had a steam mill about three or four hundred yards distant from the witness' mill, and on the opposite side of the depot. He likewise was engaged in buying scrap iron and brass. A short time after the witness missed the articles named, he went to Mr. Clarke's mill and made inquiries about them. Mr. Clarke readily permitted witness to examine his scraps. Among them witness found, in ten or a dozen pieces, about fifty pounds of brass scraps belonging to him. Two or three weeks prior to this, the witness lost the key to his mill, and had another key made, and locked his door every night. When witness began to miss articles, he became satisfied that some person was in the habit of entering his mill at night and removing articles. To ascertain whether or not this was true, he arranged a trap one night, by attaching a string to a tin can, and so placing the can that any one entering the mill by opening the door would throw the can down. The witness then had a new lock put on the door, after which he missed no more articles. Witness had a part of the brasses back under a bench on the sill of the house. The defendant was very frequently about the witness' mill. Some time before the can experiment, and very.early in the morning, the witness saw the defendant running from the direction of his mill. The trap experiment described was on or about May 10, 1882. Meal and corn, as well as brass, was taken from witness' mill before the new lock was put on. On the morning after the new lock was put on, the witness discovered footprints about the door, and a place where some party or parties had urinated against the mill.

Cross-examined, the witness said that, at the time of the burglary, his mill was a public place. It was a common corn mill, operated by steam, in which the witness did grinding for the public. Witness had no hands to assist him, but did all the work himself. He was his own fireman, engineer and miller. He opened his mill at daylight, and closed and locked it about dark. Except at meal times and when called off by business matters, the witness was always at his mill during the

day. The witness did not think that the articles missed could have been taken in the day time. He did not know that the defendant entered his mill, nor did he know when the missed articles were taken. They may have been taken three or four days before they were missed. When witness went to Clarke's mill, he found no one present but Mr. Clarke and his son William. Mr. Clarke delivered to the witness such articles as he could identify, and witness paid him the price that he had paid for them. Witness did not remember that, at the time he recovered the stolen goods from Mr. Clarke, he told Clarke he did not know when they were taken, and they might have been taken at night or during the day while witness was engaged. At that time, a great many persons came about the witness' mill during the day. The witness did not think that the articles he recovered from Clarke could have been taken out during the day, inasmuch as the witness was satisfied that he would have detected any attempt in the day time, and, beside, they were deposited in a place inconvenient to be reached.

William Clarke was the next witness for the State. He testified that he remembered the occasion when J. L. Smith came to his father's mill, about two years before this trial, and claimed some articles of brass which witness and his father had previously purchased. He, Smith, recovered a brass kettle, a brass "bearing," and some other articles. This brass bearing" the witness purchased a few days before from the defendant. This was the only article identified by the witness Smith which the witness could remember having purchased from the defendant. Witness bought the "bearing" from the defendant two or three days before, about eight o'clock in the morning, together with about twenty pounds more of old iron and brass.

Cross-examined, the witness said that when he made the purchase he asked the defendant where he got the bearing. The defendant said that he found it near the penitentiary. Quite a number of persons besides the defendant were engaged in the sale of scrap iron and brass at the time, and the witness and his father often purchased from them. Witness' father's mill was one of the most public places in the town of Huntsville.

The defendant's father was his first witness. He testified that the defendant was born on the sixteenth day of October, 1869.

J. D. Clarke was the second and the last witness for the defendant. He testified that he was the proprietor of Clarke's mill, near the depot, in the town of Huntsville, Walker County, Texas. He was acquainted with J. L. Smith, and remembered the occasion of Smith's visit to his, witness', mill, about two years before this trial, in search of scrap brass, which he claimed to have missed from his mill. Among the articles Smith identified and claimed was a brass "bearing."

Smith said

NOTES.

§ 350 Blackmailing - "Threatening Letters."-In R. v. Pickford,1 an anonymous letter stated that the writer had overheard certain persons agree together to do an injury to the person or property of the prosecutor to whom the letter was sent, and that if thirty sovereigns were laid in a particular place, the writer would give such information as would frustrate the attempt. The letter was a mere device to defraud the prosecutor of thirty sovereigns. It was held by all the judges that this was not a threatening letter within the English statute.

-

§ 350a. Blackmail Letter Sent in Sport. The gist of the crime of sending threatening letters is the intent to extort money or property from the receiver. Therefore, "if the letter was sent merely in sport to give annoyance, but with no intent to extort money, however reprehensible the act may have been, it would not constitute the offense of blackmailing." 2

§ 351. Threatening-Purpose of Obtaining Debt Justly Due.-In People v. Griffin,3 the defendant wrote letters to one Heath threatening to burn and destroy his property unless he sent him $16 which he owed him. It was held that this was not within the statute. "The question to be considered," said the court, "is upon that part of the charge in which the jury were instructed that it was entirely immaterial whether Heath, the individual to whom the alleged threatening letters were written, owed the defendant the $16, claimed or not. It is a question, I believe, of entirely new impression, and is not without its difficulties. The section of the statute under which the defendant was indicted and convicted, is in the following words: 'Every person who shall knowingly send or deliver, or shall make, and for the purpose of being delivered or sent, shall part with the possession of, any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or other designation, threatening therein to accuse any person of any crime, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property of any description, belonging to another, shall upon conviction, be adjudged guilty of an attempt to rob, and shall be punished by imprisonment in a State's prison not exceeding five years.' In order to constitute the offense created by this statute, the letters must be sent, etc., with a view or intent to extort or gain money or property, etc., belonging to another. The intent must be to extort or gain. Can it be truly said that a person extorts money which is justly his due? The word gain, in the connection here used, I regard as synonymous with extort; at least I think it must mean something more than merely to obtain, or get possession of. If that was all the Legislature intended by it, it seems to me they would have employed different language. In view of the well established rule, that penal statutes are to receive a strict construction, I must interpret this as intending to embrace only cases where the is to obtain that which in justice and equity the party is not entitled to receive. The end, as well as the means employed to obtain it must be wrongful and unlawful. The act forbidden and

1 4 C. & P. 227 (1830).

2 Morris v. State, 95 Ind. 73 (1883).

32 Barb. 427 (1848).

4 2 Rev. Stats. 678, sec. 59.

made thus highly penal, is declared by the statute, an attempt to rob; and the statute itself is found in the article entitled 'of robbery, embezzlement and larceny.' If A. met B. on the highway, and by threatening his life induces B., through fear, to surrender his watch or horse to A. this is robbery. If in the case supposed, B. defends himself or escapes and retains his property, A. is guilty of an attempt to rob. If, however, in either case, A. is able to satisfy the jury that he believed the property to be his, and that he was obtaining, or attempting to obtain, what he honestly supposed belonged to him, although in fact his claim was not legal, and the property really belonged to B. he should be acquitted. So in the case of larceny, if the defendant can show he took the goods alleged to be stolen, under a bona fide claim of right, the case becomes a mere trespass. In all these cases the fraudulent intent is the essence of the offense.

"I think it is of some consequence in this view of the subject, that the Legislature have designated the name of the offense. It is declared an attempt to rob. Before the statute, the act of obtaining money or property without a color or claim of right, through the means of threatening letters, was not a subject of criminal cognizance; and yet it is apparent that such acts were as dangerous, and accompanied with as much moral turpitude, as the crime of robbery. In declaring the act a crime, and providing for its punishment, the Legislature have, with great propriety, placed the offense in the same class with that of robbery; and in giving the statute an interpretation, I think we should apply the same rule in respect to the intent with which the act is committed, as we would in case of the common-law offense of an intention to rob; in which the lucri causa must always characterize the act. A distinction has been attempted to be drawn between an intention to obtain the possession of a specific article of property and an intention to cover the payment of a debt. And it is said that the laws have provided ample means for the collection of debts; that it would be dangerous to disregard the distinction, and would raise inconvenient and troublesome issues upon the trial. All this may be true, and yet I am unable to perceive why the argument would not apply with all its force, as well to one case as the other. The law has provided as ample civil remedies for recovering the possession of a specific chattel wrongfully taken or withheld from the party to whom it belongs, as it has for the recovery of damages in the case of a charge in action. But if it were otherwise, and we were at liberty to speculate upon the subject I should incline to regard the distinction as too theoretical and fanciful to be entitled to much weight, in a case so grave in its consequences as this.

"In the case of People v. Thomas,1 is was held that a false represensation, tending merely to induce one to pay a debt previously due from him, is not within the statute against obtaining property by false pretenses, though payment be thereby obtained. These cases are cited to show that the ultimate object or intent of the party accused must be unlawful in order to constitute the offense under a statute, the object of which was to prevent and punish acts, somewhat in character with, and certainly not more criminal in their nature, than those punishable by the statute under consideration. "Conviction reversed and new trial granted."

1 3 Hill, 169.

2 See, also, Rex v. Williams, 7 C. & P. 754; 32 Eng. Com. L. 550.