
    BLACKMAIL.
    [Clinton Circuit Court,
    May Term, 1897.]
    Cox, Smith and Swing, JJ.
    Merrick J. Jones v. State of Ohio.
    1. Chime of Blackmail. Two wats of Committing under Sec. 6830, Rev. Stat.
    Under sec. 6830, Rev. Stat., there are two ways by which the crime of blackmail may be committed. One is to accuse of a crime, punishable by law, or of immoral conduct, etc., with intent to extort or gain chattel, money or valuable security. The other, to knowingly send or deliver any letter or writing, or a matter of printed communication with or without a name, or with any letter, mark or designation, accusing or threatening to accuse of any crime punishable by law, etc., or to do injury to the person or property of any pex-son, with the intent above stated.
    2. Affidavit filed with Mayor charging Murder is Sufficient.
    An affidavit, filed with a mayor, charging a person with having committed the crime of murder, with the intent thereby to secure chattel, money or valuable security, is sufficient to sustain an indictment under sec. 6830 Rev. Stat.
    5. Indictment need not Allege Issue or Service of Warrant.
    It is not necessary, in an indictment for blackmail, based on the filing of an affidavit with the mayor, accusing a person of committing a crime, to allege or set forth the warrant or its service.
    4. Proof that Warrant was Communicated to Accused does not Justify Conviction.
    Proof that the warrant issued on an affidavit, charging a person with the crime of murder, was communicated to accused, or sent or delivered with the purpose of having it communicated to accused, under circumstances which rendered it probable that the same would be so communicated, with intent alleged to the indictment, will not justify conviction of the crime of blackmail and it is -error in the court to charge that this proof, upon failure to prove the filing of the affidavit, will warrant conviction.
    6. Demurrer to Indictment. Waiver of Duplicity in Contents.
    A demurrer to an indictment for blackmail is a waiver of such an objection as that it charged different, distinct and repugnant crimes, and was bad for duplicity. Such irregularity can only be reached by motion to quash.
    6. Error in Overruling Motion to Quash, Available only to Party making it.
    An error in overruling a motion to quash an indictment for blackmail, filed by one of several defendants, jointly indicted, is not available to other defendants. They must join in the motion or file one on their own behalf
    Error to the Court of Common Pleas of Clinton county-
   Smith, J.

The petition in error, filed by the plaintiff in error, seeks the reversal of the judgment rendered against him in the court of common pleas, and alleges as ground therefor that the trial court erred in this, viz-.: that it erred in overruling a motion to quash the indictment; that it erred in overruling the demurrers filed thereto; that it erred in the admission of evidence in the charges given to the jury, and those refused, and in overruling the motion for a new trial based on the ground that the verdict was against the evidence.

The indictment against the defendant, which was based on sec. 6830, Rev. Stat., is very long and involved in its language, and in some respects it is difficult to know exactly what it means — stripped of mueh of its verbiage, we understand its substance to be about this: That the plaintiff in error, Merrick F. Jones, and two other persons (naming them), on October 20, 1895, at Clinton county, Ohio, unlawfully, knowingly and feloniously, did verbally and orally, and in writing, and by then and there sending and delivering to one Doan, mayor of the village of Wilmington, in said county, a certain letter writing, and written and printed communication as follows: (Here is set out, in haec verba, an affidavit made by said defendant Jones before said mayor, charging that one Mary J. Urton, or Mary J. Jones, did unlawfully kill and murder one-Jones, on July 15, 1885, in Delaware county, Ohio), and by then and there sending and delivering to said Mary J. Urton, or Jones, a certain letter writing and written or printed communication, which said letter writing and written or printed communication is as follows:— (And here is set out a copy of warrant issued by said mayor in the usual form, directed to one J. W. Smallwood, as a special officer, reciting that a complaint had been made to said mayor, by said M. F. Jones, charging said Mary J. Urton, otherwise Mary J. Jones, with the crime aforesaid, and commanding said officer to take said Mary J. Urton, or Jones, if she be found in Clinton county, and remove her body to the county of Delaware, aforesaid, and deliver it to any magistrate of said county having cognizance of said offense, to answer said complaint and be further dealt with according to law), accuse and threaten to accuse said Máry J. Urton, otherwise Jones, of having committed the crime of unlawfully, purposely and maliciously killing and murdering one — ——Jones, on or about July 15, 1885, at the county of Delaware, Ohio, said crime being punishable by the laws of the state with imprisonment in the Ohio penitentiary, with intent thereby, then and there unlawfully, willfully, knowingly and feloniously, to compel the said Mary J. Urton, aforesaid, against her will, to execute and deliver to the said Merrick F. Jones, her note for $2,500, and a mortgage on a farm owned by her in Delaware county, Ohio, to secure said note. And then follow, in four separate paragraphs, allegations as to other and different intents with which such acts were done, all connected by the conjunction “and,” viz.: First — To compel her to settle a suit: brought by her against him in Clinton county, setting out the nature thereof, against her will. Second — To compel her against her will to settle another suit brought by her against him in Clinton county. Third — To compel her to eonvey to him her interest in a farm in Delaware county of the value of $6,000. Fourth — To compel her against her will to agree to execute and deliver to him, her note for $2,500, and a mortgage to swore it, with intent thereby to extort and gain from her certain chattels, money, valuable securities and pecuniary advantages, to-wit: certain money, of the value of $2,500, and a note and mortgage securing it, said chattels, money and valuable securities being then and there the property of said Mary J. Ur ton — contrary to the form of statute, etc.

The statute on which this indictment is founded, sec. 6830, Rev. Sta.t., is certainly very unskillfully drawn, and it is exceedingly difficult to form an opinion as to the proper construction to be placed on some of its provisions. It attempts to define what shall constitute the crime of blackmailing, and it is clear from its language, that it may be done in different modes, and by different acts, and with the different intents, as stated in the section. Thus, by the.first paragraph of the section, it is provided, that whoever, either verbally or by letter or writing, or written ■or printed communication, sent or delivered by him, demands of any •person, with menaces, any chattel, money or valuable security, with any one or more of the intents mentioned aferwards in the section, is guilty of the crime. But we do not understand that this indictment is founded ■on this, for there is no allegation in the indictment that there was any ■verbal or written demand made by the defendant on Mary J. Urton, with ■menaces for any chattel, money or valuable security. The indictment, then to be valid, must be founded upon some other provision of the stat-ute, and we understand it to be based on the immediately succeeding lan:guage used, viz.: “Or accuses, or knowingly sends or delivers any letter <or writing, or any written or printed communication, with or without a name, or with any letter, mark or designation, accusing, or threatening to accuse, any person of a crime punishable by law,” etc., “with intent to extort, or gain from such person any chattel, money,” etc., mentioning other intents, shall be imprisoned, etc.

The conclusion we have reached as to the meaning of this part of the section is this: that there are two ways here pointed out by either of which the crime may be committed, viz.: First — That whenever any person accuses any person of a crime, punishable by law, or of any immortal conduct, etc., etc.', with intent to extort or gain from such person any ehattelj money, etc., etc., he violates the statute; and Second— That any person who knowingly sends or delivers any letter or writing, or any written or printed communication, with or without a name, or with any letter, mark or designation, accusing or threatening to accuse any person of a crime punishable by law, etc., etc., or to do an injury to the person or property of any person, with intent to extort or gain, etc., etc., is also guilty of a breach of the statute. It may be that such is not the grammatical construction of the language used, but we think it must have been the intention of the legislature so to provide. If it be not so, we do not see how the words “or accuses” are to have any meaning or force whatever.

This being our view as to this, we come to the consideration of the errors assigned.

It is claimed that the trial court erred in overruling a motion to quash this indictment, based on the ground that it charged different, distinct and repugnant crimes in the same count of the indictment, and -therefore that it was bad for duplicity. The record shows that no such motion was filed by this defendant. One was filed by one of the defendants jointly indicted with him — no exception to the action of the court in overruling it could properly be taken by this defendant. He should, to avail himself of any such error, have joined in the motion, or filed one on his own behalf. Instead of doing so, he demurred to the indictment. By so doing, under the provisions of see. 7253, he waived any euch defect in the indictment, for the way to raise such a question was by a motion to quash. Second — Should the demurrer to the indietmeut have been sustained? That raised the question whether the facts stated in it, constituted an offense punishable by the laws of this state, or whether the intent with which it was done was alleged. Our conclusion ti this is, that it did charge the defendant with a crime pimishab e under the laws of the state, in this — that it charged him with aceusi-g Mrs. Urton of the crime of murder, by unlawfully, knowingly and feloniously filing his affidavit as set out in the indictment with the mayor of Wilmington, charging her with the crime of murder, and with the unlawful and felonious intents set out therein. This was the gravest ac usation that could be made, and we are satisfied that such an accusation, feloni-ously made and with the intent stated, comes within the letter and spirit of the statute. The demurrer was therefore properly overruled. We are of the opinion, though, that so much of the indictment as relates to the issue or service of the warrant, or the sending or delivering it to Mrs. Urton, did not constitute an offense in the meaning of the statute, and this part of it should be deemed to be surplusage.

Many specific objections are made to the charge given by the court to the jury. The principal objection we find to it is, that so far as we can see, the court substantially held, as we understand, that the indictment might be sustained against the defendant, not only by showing an accusation made by him against Mrs. Urton, by the affidavit filed by him with the intent mentioned therein, but, if that were not sustained by proof, that if it were shown that the warrant issued thereon, if communicated to the accused, or sent or delivered “with the purpose of having it communicated to the accused, and under circumstances which render it probable that the same will be so communicated,” if accompanied with the intent alleged in the indictment, "would also justify his conviction of the crime. It must be conceded that the charge on this point is obscure, but such seems to us to be its fair meaning. This view is strengthened by the fact that the court refused to give special instructions Nos. 4 and 5, asked by counsel for defendant to be given to the jury. No. 4 asked, in substance, that the jury be charged that the warrant issued by the mayor upon which Mrs. Urton was arrested, was simply a judicial order issued by the mayor, and can not be considered by the jury as an accusation of the crimé of murder on the part of the defendant and against Mary Urton with the extent to extort, and you can not convict the defendant, upon such evidence, of accusing the said Mary Urton under the present indictments. And No. 5 asked the court to say to the jury that the charge that the defendant, “unlawfully, willfully, knowingly and feloniously did verbally and orally, and in writing, and by then and there sending and delivering to one Mary Urton, aforesaid, a certain letter writing and written and printed communication,” which Is as follows: (and here follows the copy of the warrant as set out in the indictment,) did accuse, and threaten to accuse her of murder, with intent, etc., “is not supported by evidence that said warrant was issued by Doan, and delivered by him to J. W. Smallwood, special officer, and served by Smallwood upon, and then and there read by him to said Mary J. Urton, and that you cannot convict the defendant upon such evidence, notwithstanding the proof, if you find any was offered, of the intent of said Merrick R. Jones, in making the affidavit upon which said warrant was issued.”

Mills & Clevenger, for Plaintiff in Error.

Pros. Attorney Hartman, and Mdvitte Ha/yes, for Defendant in Error.

We think that those charges were substantially correct and should have been given, and were not in substance given elsewhere. We think that there was no error in the refusal to give the other special charges asked by defendant’s counsel.

As to the ground that the verdict was against the weight of the evidence, we have this to say, that if the statement made by the prosecuting attorney as to the facts in this ease be true — and that they are true is not controverted by counsel for the defendant and seems to be supported by the evidence — it is shown that the defendant was guilty of almost diabolical conduct in his reatment of this unfortunate and hardly responsible woman, in his attempt by this accusation to extort from her, and apply to his own use, all of her estate, and ivas clearly guilty of the crime charged against him. And it can not be said that his sentence of two years’ imprisonment was excessive. If he was of sound mind, and there were no extenuating circumstances (and this last does not appear in the record), a sentence for the full term of five years would not seem too great.

In this state of the case, and with the interpolation which we have concluded should be placed upon this statute, we feel very unwilling to reverse the judgment on the ground of error in the charge of the court, but finding that substantia] error has been committed, must do so, if insisted upon by plaintiff in error. But as he has already served a considerable part of his term in the penitentiary, and with the belief that on a new trial he would be again convicted and run 1he risk of a longer imprisonment, it would seem that he would act wisely if he allows matters to rest as they are.  