Opinion
No. 11040.
April 10, 1950.
Elmer S. Whiting, in pro per.
Don C. Miller, Cleveland, Ohio, for appellee.
Before SIMONS, MARTIN and McALLISTER, Circuit Judges.
Elmer Stevens Whiting has appealed from the denial by the district court of his motion to annul, vacate and set aside his sentence and to direct his immediate release from prison.
There were nine counts in the indictment, all charging appellant's violation of section 338a, subdivision (a), of Title 18 United States Code [1948 Revised Criminal Code, 18 U.S.C.A. § 876], in wilfully with intent to extort money, threatening to injure, and knowingly and with intent to extort money depositing in the United States Post Office letters containing threats to injure the person of the addressee.
On motion of the United States Attorney, all counts of the indictment except the ninth count were dismissed. The defendant was found guilty on that count and was sentenced to fifteen years imprisonment. The only material issue before us is whether the single count upon which the conviction rested states an offense. It is clear that it does. Even without inclusion of the first numbered paragraph of the ninth count, the offense condemned is plainly charged, in that averment is made that the defendant "did, on or about the 3rd day of May, 1948, in the City of Canton, County of Stark, State and Northern District of Ohio, then and there knowingly and with intent to extort money from Joe Cohen deposit and cause to be deposited in a Post Office of the United States, to-wit, the Post Office at Canton, Ohio, to be sent and delivered by the Post Office establishment of the United States, a letter and communication postmarked Canton, Ohio, May 3, 1948, addressed to the said Joe Cohen and containing a threat to injure the person of the said addressee, * * * which letter and communication was then and there enclosed in a sealed envelope, postage prepaid, a true copy of which envelope is marked Exhibit "Q", attached hereto, and by reference made a part hereof; that a true copy of said letter and communication is marked Exhibit "R", attached hereto, and by reference made a part hereof; that said letter and communication was duly carried by the United States mail for delivery into the City and County of San Francisco, Southern Division of the Northern District of California, according to the direction thereon."
The exhibited letter plainly threatens injury to the addressee Joe Cohen, Elks Club, San Francisco, California, and evinces the manifest intent to extort money from the addressee.
The order of the district court denying the motion of appellant is affirmed.