§ 2882. Threat of prosecution.-It is not required that the proof show an actual threat to institute criminal proceedings. The threats need not refer in terms to the criminal courts. It is sufficient if they reasonably be understood to embrace a criminal prosecution. Thus where the threats were "give me five hundred dollars, or I'll put this thing in court," and "if you don't see my lawyer before five o'clock you will be arrested," these were held sufficiently broad to embrace threats of a criminal prosecution.14 So it has been held that proof of a threat "to proceed against you criminally," is equivalent to proof of a threat to accuse the person of a crime."

15

§ 2883. Threat-Prosecution by third person.-Nor is it necessary to the commission of the offense that the person making the threat should himself make the accusation or institute the criminal proceedings. It may be done by a third person. Thus where the letter containing the alleged threat showed that the prosecution would. be instituted by another person, but where it further appeared that the writer of the letter would be the principal witness on the part of the state in the criminal prosecution, it was held sufficient as a threat that a formal accusation of crime would be made.16

§ 2884. Instituting criminal proceedings-Intent.-The offense may be complete without sending any communication whatever to the person threatened. It may be committed by instituting criminal proceedings; or by entering into a conspiracy and instituting such proceedings for the purpose and with the intent to extort money or other thing of value by inducing or compelling the defendant in such proceedings to pay money for the purpose of ending the prosecution. Thus under an indictment which charged the defendants with a conspiracy for the purpose of extorting money by filing or causing to be filed with an officer having jurisdiction an affidavit charging an alleged criminal assault, it was held sufficient to prove that the affidavit was filed with the intent of extorting money from the person therein. accused and that the criminal charge was a sufficient accusation within the meaning of the statute.17

14 Commonwealth v. Bacon, 135 Mass. 521; People v. Tonielli, 81 Cal. 275, 22 Pac. 678.

15 People v. Eichler, 75 Hun (N. Y.) 26, 26 N. Y. S. 998.

16 Commonwealth v. Dorus, 108 Mass. 488; People v. Braman, 30 Mich. 460.

17 Utterback v. State, 153 Ind. 545, 55 N. E. 420.

§ 2885. Proof of intent to extort.-The mere proof of the words used in the way of a threat is not sufficient to establish the crime. The proof must show the existence of an intent to extort. The Supreme Court of Massachusetts said: "The gist of the offense is the intent to extort money by a malicious threat to accuse of some crime. The words used do not constitute the offense, without the accompanying intent to extort.”18 On this question of the proof of intent the same court said: "The act itself implies criminal intent, and there is no occasion in construing the statute to hold that, to create the offense, anything more is required than is implied in the usual definition of malice."19 And it has been held that the intent may appear on the face of the writing itself.20

§ 2886. Threats to collect bona fide indebtedness.-The question has been raised as to whether or not the making of threats to prosecute for a supposed or alleged crime for the purpose of compelling the payment of a bona fide indebtedness is an offense under the various statutes on the subject of blackmail. It must be borne in mind that the statutory offense consists in making the threat with the intent to extort or for gain. The solution of the problem then turns upon the point whether a threat to compel the payment of a bona fide indebtedness is or is not an intention to extort or to gain. The few cases on the subject have held that such threats are not within the statute. Of this the Supreme Court of Indiana said: "We are of opinion that a threat to prosecute for an alleged or supposed offense connected with the creation of a debt, where the object of the threat is merely to secure the payment of the debt due from the person threatened to the person making the threat, does not come within the spirit or purpose of the statute."21 So where threats were used for the purpose of securing payment for property destroyed, and where the act on which the threatening accusation was based was not punishable by law, it was held that the offense was not established.22

18 Commonwealth v. Moulton, 108 Mass. 307; Commonwealth v. Goodwin, 122 Mass. 19; People v. Gardner, 144 N. Y. 119, 38 N. E. 1003; State v. Bruce, 24 Me. 71.

19 Commonwealth v. Goodwin, 122 Mass. 19; Commonwealth v. Buckley, 147 Mass. 581, 18 N. E. 571.

20 People v. Braman, 30 Mich..460. 21 State v. Hammond, 80 Ind. 80; People v. Griffin, 2 Barb. (N. Y.) 427; Mann v. State, 47 Ohio St. 556, 26 N. E. 226; see, Brabham v. State, 18 Ohio St. 485.

22 Mann v. State, 47 Ohio St. 556, 26 N. E. 226.

§ 2887. Truth or falsity of charge immaterial. The prosecution is only required to make out or prove the threat with the intention of unlawfully extorting either money or something of value from the person threatened. The state is not required to offer any proof on the subject of the offense or conduct alleged in connection with the threat. The truth or falsity of the charge made on which the threat or the effort to extort is based, is wholly immaterial.23 On this theory it was held error for a court to instruct a jury that if they found the defendant guilty of blackmail they might consider the facts in relation to the charge made as bearing on the question of his punishment. But in some cases it has been held that the truth of the accusation may become material for the purpose of determining the intent with which the defendant made the accusation.25

§ 2888. Knowledge that crime was committed-No defense.-The accused will not be permitted to prove as a matter of defense that he either believed or knew that the person threatened was in fact guilty of the crime charged. On this subject it was said by a New York court: "The fact that the person who, in writing or orally, makes such a threat for such a purpose believes or even knows that the person threatened has committed the crime of which he is threatened to be accused, does not make the act less criminal. The moral turpitude of threatening for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed is as great as it is to threaten, for a like purpose, an innocent person of having committed a crime. The intent is the same in both cases to acquire money without legal right by threatening a criminal prosecution. But threatening a guilty person for such a purpose is a greater injury to the public than to threaten an innocent one, for the reason that the object is likely to be obtained, and the result is the concealment and compounding of felonies to the injury of the state. The fact that the defendant believed in the complainant's guilt is no defense and is not even a mitigating fact."26

"People v. Choynski, 95 Cal. 640, 30 Pac. 791; Motsinger v. State, 123 Ind. 498, 24 N. E. 342; Elliott v. State, 36 Ohio St. 318; Commonwealth v. Buckley, 147 Mass. 581, 18 N. E. 571; People v. Whittemore, 102 Mich. 519, 61 N. W. 13.

VOL. 4 ELLIOTT Ev.-11

24 Kistler v. State, 64 Ind. 371.

25 Mann v. State, 47 Ohio St. 556, 26 N. E. 226; Reg. v. Richards, 11 Cox Cr. Cas. 43.

28 People v. Eichler, 75 Hun (N. Y.) 26, 26 N. Y. S. 998.

§ 2889. Generally.-The statutes of almost every civilized country make blasphemy or profanity a crime. But there is some diversity among these statutes as to what constitutes the offense. However, there are some general definitions that are practically common to all the statutes; or rather there are certain terms and principles which form the underlying bases of all the statutory offenses. The punishment for blasphemy is not intended to cause or compel a belief in or recognition of God or of a Supreme Being; but the object and purpose of the punishment is to secure order and maintain decency, and to prevent that which is offensive to the general community and to a large portion of the citizens of every country. The common law has been held to be the guardian, to a certain extent, of the morals of the people, and its object is to protect against offenses which are openly and notoriously against public decency and good morals.1 Legislatures do not prescribe penalties and courts do not inflict punishment for blasphemy on the theory that it is a crime against God, but for the reason that the offense is considered as committed against man, or against society, and that it tends to disturb the public peace.2 Courts now very generally recognize Christianity, as revealed and taught by the Bible, as a part of the law of the land, and therefore respect and protect its institutions as well as to regulate the public morals. "The laws and institutions of this state

1 Grisham v. State, 2 Yerg. (Tenn.) 589; Bell's Case, 6 City Hall Rec. (N. Y.) 38.

Y.) 290; Bell v. State, 1 Swan (Tenn.) 42; Updegraph v. Commonwealth, 11 S. & R. (Pa.) 394;

2 State v. Chandler, 2 Har. (Del.) Sparhawk v. Union &c. R. Co., 54

553.

Pa. St. 401.

'People v. Ruggles, 8 Johns. (N.

are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the commonwealth."4

997

§ 2890. Common law definitions. In order to get the definition of blasphemy, as in treason, murder, perjury and many other crimes, resort must be had to the common law for the legal definition. According to some definitions blasphemy "consists in maliciously reviling God, or religion." An English court said: "They would not suffer it to be debated whether defaming Christianity in general was not an offense at common law; for that whatever strikes at the root of Christianity tends manifestly to a dissolution of the Civil Government." Some writers say: "Blasphemy is any oral or written reproach maliciously cast upon God, His name, attributes or religion." "In English law, blasphemy is the offense of speaking matter relating to God, Jesus Christ, the Bible or the Book of Common Prayer, intended to wound the feelings of mankind or to excite contempt and hatred against the Church by law established, or to promote immorality. According to some opinions it is also blasphemy to speak words denying the truth of Christianity in general, or the existence of God, even if spoken decently and in good faith." "In criminal law, to attribute to God that which is contrary to his nature, and does not belong to him, and to deny what does; a false reflection uttered with a malicious design of reviling God."9

§ 2891. Punishable at common law.-Blackstone says: "The fourth species of offenses, therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Savior Christ. Whither also may be referred all profane scoffing at the holy scripture, or exposing to contempt and ridicule. These are offenses

'Zeisweiss v. James, 63 Pa. St. 465; Goree v. State, 71 Ala. 7; Andrew v. New York Bible &c. Soc., 4 Sandf. (N. Y.) 156.

5

12 Bishop Cr. Law, §§ 76, 88; Delaney, Ex parte, 43 Cal. 478.

8 Rap. & Lawr. L. Dict.-"Blasphemy;" Black L. Dict.-"Blas

* People v. Ruggles, 8 Johns. (N. phemy." Y.) 290.

Rex v. Woolston, 2 Str. 831, Fitzg. 64; Taylor's Case, Vent. 293.

Bouvier L. Dict.-"Blasphemy."