
    Williams v. The State of Ohio.
    (Decided January 14, 1929.)
    
      Mr. Richard T. Mills, for plaintiff in error,
    
      Mr. E. G. Stanton and Mr. M. A. Picciano, for defendant in error.
   Sullivan, P. J.

This cause is here on error upon a rehearing, and it appears from the record that defendant below, Charles Williams, was' indicted under what is known as the blackmailing statute, Section 13384, General Code, which reads as follows :

“Whoever, with menaces, orally or by written or printed communication, sent or delivered by him, demands of another a chattel, money or valuable security, or accuses, or knowingly sends or delivers a written or printed communication, with or without a name, or with a letter, mark or designation, accusing or threatening to accuse, another of a crime punishable by law, or of immoral conduct, which, if true, would tend to degrade and disgrace such person, or threatening to expose or publish any of his infirmities or failings, or to subject him to the ridicule or contempt of society, or to do any injury to the person or property of another, with intent to extort or gain from him a chattel, money or valuable security or a pecuniary advantage, or, with intent to compel him to do an act against his will, may be fined not more than one thousand dollars and shall be imprisoned in the penitentiary not less than one year nor more than five years.”

Upon trial had, the defendant was convicted and sentenced as provided by the statute. The indictment charged as follows:

“That Charles Williams late of the county aforesaid, on or about the 27th day of July, in the year of our Lord one thousand nine hundred and twenty-eight, unlawfully and knowingly did threaten one Louis Girz to accuse the said Louis Girz of having committed the crime of sodomy by then and there wilfully and knowingly threatening to expose the aforesaid Louis Girz in a newspaper, unless he paid eleven hundred dollars to him, the said Charles Williams, with intent thereby then and there, unlawfully, wilfully and knowingly to extort money from the said Louis Girz.”

The errors assigned are that the conviction is unwarranted in law because under the indictment and the evidence in the case the accusation complained of was oral instead of in writing, and that the court erred in the admission of testimony as to what purports to be conversation and conduct between the defendant and the prosecuting witness on days other than the date named in the indictment. It is argued that to support the first contention the accusation must be in writing, authority for which is found in Elliott v. State, 36 Ohio St., 318, 324, wherefrom the following excerpt is set forth to support the contention that the accusation must be in writing:

“If this was a charge of ‘threatening to accuse,’ the words of the statute would seem to require that it should be in writing; but where the accusation is directly made'with the unlawful intent, whether verbally or in writing, the crime is complete.”

We note from the language above quoted, the subjunctive clause which reads “but where the accusation is directly made with the unlawful intent, whether verbally or in writing, the crime is complete. ’ ’

It is our unanimous opinion that under the record in the case this clause applj.es to the case at bar, and that the indictment and conviction are not invalid because of the absence of a written instrument.

We again note, as bearing out our contention, the following in Elliott v. State, supra:

“But where the accusation is directly made with the unlawful intent, whether verbally or in writing, the crime is complete.
“We see no reason why this should not be so. Such an accusation may be quite as effectual as a means of blackmailing as if made in writing. ’ ’

Again, from a reading of the statute we feel justified in our views, because in Section 13384, G-eneral Code, the following language is unmistakable :

“Whoever, with menaces, orally * * * demands, of another a chattel, money or valuable security, * * * or knowingly sends or delivers a written or printed communication, * * * accusing or threatening to accuse, another of a crime punishable by law, or of immoral conduct, * # * with intent to extort or gain from him * * * money * * * may be fined,” etc.

Therefore, in this respect, our judgment is that there is no error as to the first assignment of error.

Approaching the- second assignment of error, that the court erred in admitting testimony concerning the conduct between the prosecuting witness and the defendant on other dates than that mentioned in the indictment, we have this to say: That it is' a well-settled proposition, in cases where the question of scienter is to be determined, that proof of offenses of a similar nature, occurring at or about the same time as the main act, is competent for the purpose of showing guilty knowledge. Counterfeiting cases and those involving the obtaining of money under false pretenses, and other crimes of a similar nature, are susceptible of proof of this character.

We do not, from the record in this case, believe that the question of scienter is involved, but this does not dispose of the right of the state in a criminal case to show to a reasonable degree, within the discretion of the court, the relationship between the parties relating to the alleged offense.

This class of testimony is entirely different than testimony relating to guilty knowledge, and from a reading of the record it is our judgment that the testimony concerning the defendant and the prosecuting witness bears only upon the question of their relationship, and the fact that the conduct and conversation are between the same parties distinguishes the case at bar from that class of cases where similar offenses are barred where they have reference not only to different dates than those named in the indictment but also to transactions- involving different persons.

In the instant case there is no relation borne out by the testimony that applies to any persons excepting the same parties, to wit, the prosecuting witness and the defendant. Therefore upon the proposition that the evidence was competent to show the relationship between the parties it is our opinion that the court committed no error in permitting the testimony to go before the jury, especially as the court instructed the jury the purpose of the admission of this character of evidence, as distinguished from evidence whose province is to determine the main issue. Smith v. State, 10 Ohio App., 29, 31 O. C. A., 401, and many similar authorities establish the proposition that similar acts may be proven to show scienter; but in the instant case, the prime province and purpose of the testimony as to other acts and conversation between the same parties bear upon the relationship between the parties themselves, prior to the commission of the alleged offense, and this class and character of testimony is always competent in a criminal case, providing the court is not guilty of an abuse of sound discretion in the exercise of his power.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  