“J. C. HUTCHINSON.”
See 7 Cal. App. Reports, page 330.
The Court, in discussing this point, said: “The indictment does use the words ‘unlawful injury’ in the first part of it; but when the facts are specifically set forth as to what the defendants threatened to do we find that the threat was that defendants ‘would prevent the said Joseph Malfanti, Charles Kelb and William Lafrenz from receiving said license or obtaining the same.’ There is no allegation that any unlawful act was threatened, and the attorneys for the prosecution frankly admit that they rely upon the fact that the defendants obtained the money by threatening to do an injury, which they claim was unlawful solely for the reason that the threats were made with intent to extort money. In other words, it is claimed that even though the French-restaurant proprietors were violating the law, and conducting immoral places used as resorts by lewd women, and thus not legally entitled to a license to sell liquor, a threat to prevent the issuance of licenses to such places by laying the facts before the Board of Police Commissioners in a legal manner, constitutes a crime if such threat was made with the intent to extort money. Such, in our opinion, is not the law. The statute uses the words that the threat must be to do ‘an unlawful injury’; and in order to charge a crime the indictment must aver in some way that the threat was to do an unlawful injury. It is apparent from the language of the statute which we have hereinbefore quoted, that it is not every kind of fear that will support a charge of extortion because of property obtained thereby. The fear must be induced by one of the threats enumerated in the statute. The Legislature has seen fit to provide that the threatened injury to property upon which a charge of extortion may be predicated must be an unlawful injury to property. That is, the injury threatened must be, in itself, unlawful, irrespective of the purpose with which the threat is made. As the word ‘unlawful’ is used in the statute it qualifies the ‘injury’ and not the ‘threat.’ Unlawful means contrary to law. It is true that from a high standard of ethics it could not be claimed that one could extort money by a threat to do a lawful act, if the intent was to get money by the use of the threat, but every wrong is not made a crime. There are many wrongs done every day that are not enumerated in the category of crimes contained in the Penal Code that are of much more serious consequence in their nature than others which are defined therein; but we must look to the statute to find whether or not an act is a public offense for which a prosecution will lie. To procure property from others by a mere threat to do a lawful act is not a crime. The object of the statute—or at least one of its objects—is to protect the party from whom the property is extorted; and if such party pays the money in order to secure protection in violating the law himself he cannot be heard to complain. He in such case would be a party to the violation of the law. In this case, if the parties as a fact paid the money in order to prevent the evidence as to the character of places they kept from being exposed to the Board of Police Commissioners, they are not in a position to complain.”
The Examiner, in its issue of January 11, 1908, said of the decision:
“The District Court of Appeal has overturned the conviction of Mayor Schmitz on the ground that threatening to prevent the French-restaurant keepers from getting a license to sell liquor does not constitute the crime of extortion, with which he is charged. This is one of the decisions that will aggravate the dissatisfaction of the public with the courts.
“Abe Ruef, once political boss of San Francisco, testified that he had divided with the Mayor the ‘fees’ for getting the licenses which Schmitz had held up until the money was paid. ‘A license to sell liquor is not property in the ordinary sense of the word,’ declares the court, making the point that the indictment ‘does not allege any threat to injure property.’
“Any ordinary intelligence would construe the threat to take away a license to sell liquor from a restaurant unless a certain sum of money was paid as the plainest kind of extortion, particularly when the Mayor was shown to have shared in the money thus exacted, and the fact that the contrary ruling of a court acts as a release of a man whose guilt was clearly established, will not change that view.”