
    William A. Brabham v. The State of Ohio.
    In the course of an ordinary matter of business, H. made and delivered to B. a promissory note, without the stamp required by law. Shortly afterward, B. sent to H. a letter as/ollows:
    “ 'Washington County, December 2, 1865.
    “ Mr. D. H. Hall — Dear Sir: Upon examining the excise law, I find that note you made me require stamp, and that you are liable to fine of two hundred dollars for not stamping it. Y ou will please call immediately and make satisfaction, and save yourself trouble. Yours, with respect,
    “W. H. Brabham.”
    
      Seld, that this was not the sending of a letter containing threats of injury, “ or with the intent and for the purpose of extorting money or other valuable thing,” within the purview of the 23d section of the act of March 8, 1831, for the punishment of certain offenses therein named” (S. &C. 430); and the fact that at a subsequent interview between the parties threats were orally made which did result, wrongfully or rightfully, in extorting a valuable thing, does not alter the case.
    Error to the court of common pleas of Washington county.
    At the March term, 1866, of the common pleas of Washington county, Brabham was indicted for that, on December 2, 1865, ho sent a letter, signed by himself, to one Willard D. Hall, containing willful and malicious threats of injury to Hall, to wit, threats of accusing him of the crime of making and issuing and delivering to Brabhan a promissory note for the payment of money to him, without duly stamping the note, with intent to evade the provisions of the revenue laws *of the United States; and that the intent of [486 the letter was to extort money from Hall. The letter, as set out in the indictment, reads as follows:
    “Washington County, Dec. 2, 1865.
    “ Mr. W. D. Hall — Dear Sir: Upon examining the excise law, I find that note you made me require stamp, and that you are liable to fine of two hundred dollars for not stamping it. You will please call immediately and make satisfaction, and save yourself trouble.
    “ Tours, with respect, W. A. Brabham.”
    The defendant demurred to the indictment, for that it does not contain any charge of crime known to our law. The demurrerwas overruled, and a plea of not guilty entered, and the parties went to trial.
    It appears from the bill of exceptions that Brabham, as the attorney for a Mrs. Chandler, whose boy had lived with Hall, called upon Hall on the 22d of November, 1865, and collected of him two hundred and eighteen dollars, for money the boy, when he went into the army, had left with Hall. At the same time Brabham wanted Hall to pay fifty dollars more for the wages of the boy while he lived with him. Hall replied that the boy had been going to school, and offered ten dollars for his services. Brabham refused to take that sum, but they finally agreed upon fifteen dollars, for which Hall gave the note that was not stamped.
    Hall received the letter by mail, and on the 7th of December, 1865, called at Brabham’s residence to .see him about it, bringing a stamp to put on the note, and told him that the was ready to stamp and pay it. Brabham replied that that was all right.
    
      The state offered to prove that Brabham then said that there was another matter that must be settled; that Hall had not told him the truth, on the settlement, about the time the boy had attended school, and that he might either give him a note for one hundred dollars, or he would prosecute him for a violation of the revenue laws, and he would have to pay a fine of two hundred dollars; and that Brabham read a circular from the treasury department to that 487] effect. Brabham ^objected to the admission of this evidence, but the objection was overruled, and exception taken.
    There was some conflict of testimony as to what was said and done when Hall wont to Brabham with the letter. The result of the interview was, that Hall gave Brabham his note at six months for one hundred dollars ; and, it would seem from the testimony, that it purported to be for the services of the Chandler boy.
    No further statement of the testimony is material to an understanding of the opinion of the court.
    The jury found the defendant guilty as charged in the indictment.
    Thereupon he moved for a new trial for the following reasons:
    1. The court erred in admitting the testimony objected to by defendant.
    2. The verdict is against the weight of the evidence.
    3. The evidence does not show the commission of the crime charged in tho indictment.
    This motion was overruled, and exception taken.
    The judgment on the verdict was, that the defendant pay a fine of one hundred dollars and the costs.
    To reverse this judgment this writ of error is prosecuted.
    
      Simeon Nash, for plaintiff in error :
    The letter contained in tho indictment does not come within the statute (S. & C. 430). The letter recites, in the first place, a fact admitted to bo true, that Hall had failed to stamp the note, and was liable to a fine for so doing, and then says : “ You will please call immediately and make satisfaction, and save yourself trouble.” There is here no malicious or willful threat of anything, not oven of a complaint for not stamping tho note. To refer to the penalty affixed is not a threat — certainly not a direct threat. The statute says the letter must contain willful and malicious threats of injury. What more is there in this letter than any one would write who had taken a note, by mistake, without a stamp, and wanted the maker to make it valid by attaching a stamp to it? Is it possible that to threaten a party with a ^complaint, under the statute, in such [488 a case, if he does not stamp the note, comes within the statute ? I can not believe in any such construction. This question was decided in the negative in the case of Rex v. Southerton, 6 East, 126, 133. See Tucker’s case, 1 Moody’s C. C. 134; 2 Russell, 707, 709, 715, 718 ; 2 East, P. C. 1115; 4 C. & P. 562 ; Gill’s case, 2 Lew. 305 ; 2 East, 126, 140 ; 1 Bouv. Law Dic. 636; 15 Pick. 273 ; 2 Mass. 163; Archibold’s Cr. Pl. 63, 17.
    
      W. H. West, attorney-general, for the state:
    After carefully reading the record in this case, and the evidence it embodies, I think the conviction wrong.
    The law certainly contemplates that the threats shall be of some unlawful act or mischief. The threat to institute a well-grounded prosecution certainly does not come within either of these classes. The extorting of money under such threats may be jranishable as “ compounding a felony,” but not under the charge in this indictment.
    Besides, it does not appear from the letter, or from the evidence, that, at the time the letter was written or sent, the defendant intended to extort money for the boy, Chandler, or that he had at that time learned that the boy had not been sent to school. For all that appears in the letter or the evidence, the whole matter touching the $100 note, etc., arose out of information received after writing the letter.
    The letter itself certainly does not import any threat to do any unlawful act or mischief. I am, therefore, so clearly of opinion that the conviction is against both law and evidence, that I can not ask its affirmance.
   Brinkerhoff, J.

Section 23 of the act of March 8, 1831, for the punishment of certain offenses therein named ” (S. & C. 430), under which the indictment in this case was found, reads as follows:

“ That if any person shall, knowingly, send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, containing willful and malicious threats of injury of any kind whatever, or with intent or for the purpose of extorting money or other valuable things *from any person; [489 every person so offending shall, upon conviction thereof, be fined in any sum not less than fifty nor more than five hundred dollars, or be imprisoned in the cell or dungeon of the jail of the county, and bo fed on bread and water only, not exceeding ten days, or both, at the discretion of the court.”

“We are of opinion that in order to bring a letter, sent or delivered, within the terms or the meaning of this act, it must on its face contain a'threat of injury of some kind, or the communication must be of such a nature as is calculated to extort money or other valuable thing. But the evidence in this case, all of which is set out in the bill of exceptions taken at the trial, shows that the matter of fact and the matter of law stated in the letter were true. Hall had given the note referred to in the letter; it was without a stamp ; and a liability to the penalty prescribed by the act of Congress had been incurred. “ You will please call immediately and make satisfaction.” This it seems to us, ought not under the circumstances, to be construed to be anything more than a request to come and correct a mistake, or supply an oversight, by furnishing and affixing the stamp necessary to give validity to the note. “And save yourself trouble.” This is the presentation of a motive — and a legitimate one — for a compliance with the request. The letter itself, taken as a whole, and read in the light of the evidence, amounts but to this: It states truly a matter of fact and a matter of law'; requests the doing of what ought to be done, and presents a legitimate motive for doing it. This is all there is of the letter.

What may have orally passed between Brabham and Hall at the interview which followed the sending and receipt of the letter ' — what threats were then verbally made and obligations extorted, rightfully or wrongfully, are outside of the case. They do not come within the purview of the statute.

We think the court below erred in overruling the motion for a new trial.

Judgment reversed.

Day, C. J. and Scott, Welch, and White, JJ., concurred.  