Opinion
Crim. No. 651.
February 26, 1901.
APPEAL from a judgment of the Superior Court of El Dorado County and from orders denying a new trial and denying a motion in arrest of judgment. M.P. Bennett, Judge.
The facts are stated in the opinion of the court.
F. Adams, James W. Keyes, and Clarke Howard, for Appellant.
Tirey L. Ford, Attorney-General, and Abe Darlington, District Attorney, for Respondent.
Defendant has been convicted of the crime of extortion, and appeals to this court. By the indictment it was alleged that defendant obtained thirty dollars from one Greenwald under fear induced by threats upon the part of defendant to accuse him (Greenwald) of the "crime of having, in violation of the laws of the United States of America, sold and delivered cigars in a form other than in a new box not before used for the purposes of packing cigars therein." In substance, it may be said that defendant threatened to accuse Greenwald of violating the United States revenue laws, and under fear induced by such threat secured from Greenwald the aforesaid sum of thirty dollars.
It is insisted that the facts alleged do not constitute an offense against the laws of the state of California, but, upon the contrary, constitute a crime exclusively within the jurisdiction of the Federal courts. We find nothing in this contention. The defendant is charged with the crime of extortion, — an offense directly within the jurisdiction of the state courts. He is not charged with a violation of a Federal statute, but with a violation of a state statute. He threatened to accuse a man with the commission of a crime. It makes no difference if that crime be one solely triable in the Federal courts, for defendant is not being tried for that crime. If he had threatened to have Greenwald arrested upon the charge of counterfeiting the money of this country, and was charged with the crime of extortion for that reason, clearly his offense would be one against the laws of this state. It would be extortion, as defined by the Penal Code of this state, and this court would not be concerned as to whether or not defendant's crime was also punishable under Federal laws. The court finds no substantial defect in the indictment, and the demurrer thereto is not well taken.
A demurrer to a previous indictment laid against defendant was sustained, and the case referred to a second grand jury, which grand jury returned the indictment now before the court. It is insisted that defendant's second prosecution should have been based upon a preliminary examination, and an information filed thereon. There is no merit in this position. When section 1008 of the Penal Code says that after such order of resubmission the defendant "may be examined before a magistrate," the word may takes its usual ordinary meaning, and is not to be construed as must.
The stenographer who was peresent and took the testimony before the grand jury was sworn as a witness, and testified as to certain evidence given by defendant before that body. This evidence in no sense amounted to a confession, and hence no question of duress or menance upon the part of defendant at the time he gave his testimony is involved herein. Under such circumstances, defendant's statements, whether made in the grand-jury room, at the trial, or extrajudicially, may be used against him, and we see no error in their admission here. The stenographer had the right to read from her notes of his evidence taken at the time, if she was so inclined. The statute contemplates that she may thus referesh her recollection. (Code Civ. Proc., sec., 2047; Burbank v. Dennis. 101 Cal. 104.)
We find nothing further in the record demanding consideration. While the evidence tending to support the verdict in this case is very weak, we are not prepared to say it is insufficient. Owing to the peculiar circumstances of the case and the character of the evidence relied upon to support the verdict, we think the law would have been well satisfied with a judgment finding defendant guilty of a misdemeanor But that is a matter beyond review by this court.
For the foregoing reasons the judgment and orders are affirmed.
Van Dyke, J., and Harrison, J., concurred.
Hearing in Bank denied.