McNamara v. State , 203 Ind. 596 ( 1932 )

Appellant appeals from the judgment against him, which was rendered upon a verdict that he is guilty of the crime of blackmail, as defined by § 2440 Burns 1926, Acts 1905 p. 584, ch. 169, § 370. The question presented for decision is pleaded by the assigned error, predicated upon the action of the court overruling appellant's motion to quash the indictment. The objections to the indictment are that the facts stated in the indictment do not constitute a public offense, and that the indictment does not state the facts with sufficient certainty. The indictment, omitting the caption and indorsements, is as follows: "The Grand Jurors for the County of Marion and State of Indiana, upon their oaths, present that Ben Staggenborg, on or about the 15th day of November, A.D. 1923, at and in the County of Marion and State aforesaid, was then and there employed by Seth C. Niman and Miles T. Niman (a partnership) to perform certain work for the said Seth C. Niman and Miles T. Niman (a partnership) in connection with the installation of certain boilers in what is commonly known as the Elks Building, located in the City of Indianapolis, Marion County and State of Indiana, that on or about the said 15th day of November, A.D. 1923, the said Ben Staggenborg did then and there engage in the work of assisting with the installation of said boilers in said Elks Building, located in the City of Indianapolis, Marion County and State aforesaid; that on or about the said 15th day of November, A.D. 1923, one John J. McNamara (who was then and there the Secretary and Business Agent of Bridge, Structural and Ornamental Iron Workers Local Union Number 22, located in the City of Indianapolis, County of Marion and State of Indiana, did then and there, to, and in the presence of said Ben Staggenborg, unlawfully, feloniously and verbally threaten to do injury to the person and property of said Ben Staggenborg with the unlawful and felonious intent to extort and gain from the said Ben Staggenborg certain pecuniary advantages, the exact nature of which said pecuniary advantages is to the Grand Jurors unknown for the benefit of him, the said John J. McNamara and third persons, whose names are to the Grand Jurors unknown, which said certain pecuniary advantages, the exact nature of which is to the Grand Jurors unknown, were then and there possessed by and under the control and disposition of the said Ben Staggenborg and with the further unlawful and felonious intent to compel the said Ben Staggenborg, the person so as aforesaid threatened, by means of said threats to do an act against his will, to-wit: to compel the said Ben Staggenborg to abandon his said employment with the said Seth C. Niman and the said Miles T. Niman (a partnership) against his will, with the intent aforesaid."

The question points to the allegation in the indictment, concerning the thing sought to be extorted, to-wit, a "certain pecuniary advantage, the exact nature of said pecuniary advantage is, to the Grand Jurors, unknown," etc. The specific point, made to the first reason to quash, 1. is that the thing to be extorted and gained by the defendant, pleaded in the language of the statute, to-wit, "pecuniary advantage," is contrary to the well-established rule that things comprehended by a general designation in a statute must be ejusdem generis to the particulars in the definition; and the point made to the second reason to quash is that the words of description are not sufficient to meet the constitutional requirement of § 13 of the Bill of Rights of the Constitution. This rule — ejusdem generis — is particularly well stated by this court in the opinion of the case of Miller v. State (1889), 121 Ind. 294, 23 N.E. 94, as follows: "Where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general word or words are to be construed as applicable to persons or things, or cases of like kind, as are designated by the particular word or words."

The word "pecuniary" has reference to that which relates to money. (Bouvier's Law Dictionary.) It is more broadly defined to be that which consists of money; exacted or given in money; also, entailing a money penalty; as, a pecuniary penalty, reward or offense; and also that which pertains to pecuniary affairs or losses. (Webster's Dictionary.) It is defined, also, as that which is monetary; relating to money, consisting of money. (Black's Law Dictionary.) It has been judicially decided that a verbal promise to pay a debt in full is a "pecuniary" consideration within the meaning of a statute which declares any certificate of discharge in insolvency to be void, if the assent thereto of any creditor is procured by any pecuniary consideration. Phelps v. Thomas (1859), 72 Mass. 6 Gray 327, 328. Standing alone, the words in the statute, "or any pecuniary advantage whatsoever," might refer to and include many things of a pecuniary nature which could not be designated as "money" or a "valuable security."

In construing a statute, a court will not only look to the particular words used to ascertain the intent of the Legislature, but will also consider the title of the act, which, in 2, 3. this case, is an absolute general statement, to-wit, "An act concerning public offenses," which gives no aid whatever, in construing the words, which define the act of blackmailing, presented by the question on appeal. The section of the statute, which defines this crime, must be construed solely with reference to its own language, and the decisions of the law in relation thereto, provided the court desires to be guided by precedent.

This rule — ejusdem generis — which concerns particularity in criminal pleading, and the limitation of construction of the statutory definitions of crimes, is well applied and illustrated by a long line of decided cases. Brooks v. Cook (1880),44 Mich. 617, 7 N.W. 216, 38 Am. Rep. 282; Reg. v. Cleworth (1863), 4 B. S. 927; Peate v. Dicken (1834), 1 C.M. R. 422; Ex parte Hill (1827), 3 C. P. 225; Sandiman v.Breach (1827), 7 B. C. 96; Clark v. Gaskarth (1818), 8 Taunt. 431; State v. Walsh (1890), 43 Minn. 444, 445, 45 N.W. 721; 2 Lewis' Sutherland, Statutory Construction (2d ed.) § 423.

But, for the general term in a statute to be ejusdem generis to the particulars therein, the particulars must be of the genera, and not of species. If the definition of the things 4. forbidden are general, there is nothing to which ejusdem generis may apply. Higler v. People (1880), 44 Mich. 299, 6 N.W. 664, 38 Am. Rep. 267.

In the case before us, the words, "or any pecuniary advantage whatsoever," cannot apply to chattels, because chattels are not pecuniary, and besides chattels is a 5. general term. The only things to which the phrase could be ejusdem generis are the words, "money" and "valuable security." Money has a well-defined meaning, expressed, both by judicial decision, and by the statute. § 2216 Burns 1926. The section of the statute in relation to money is one of the sections in the same act and under the same title, which includes the section which defines the act under consideration. The particular things which shall pass as money are there defined. The definition exhausts the class so that there could be nothingejusdem generis to the class. "Valuable security," used in the definition of the crime is general and not, in any sense, particular or specific. If, instead of the words "valuable security," certain valuable securities were named, then it might be said that any pecuniary advantage whatsoever must be ejusdemgeneris to the things named. From this reasoning, it must follow that a pecuniary advantage named in the statute is an advantage that is neither ejusdem generis to "money" nor to a "valuable security." It is neither currency, bank bills nor bank notes, and neither is such pecuniary advantage a bond nor a mortgage.

It is, therefore, held as to the first reason why the indictment should be quashed, that the words in the indictment, to-wit, "certain pecuniary advantages," are not ejusdem 6, 7. generis to the words of the statute, to-wit, chattel, money or valuable security. Concerning the second reason, pleaded to quash the indictment — that the indictment does not state facts with sufficient certainty — the rule is that the averments made must be such that will apprise the defendant of the character of the charge against him. The charge of the crime is insufficient in this respect to meet the requirements prescribed by rules of construction pronounced by this court. § 13 Bill of Rights; Ridge v. State (1923),192 Ind. 639, 137 N.E. 758.

Appellant, under his proposition that the indictment is bad because of uncertainty based upon the allegation, to-wit, "certain pecuniary advantages, the exact nature of which said pecuniary advantages is to the grand jurors unknown," makes the points: (1) "If unknown, then the grand jury could not know that it was in fact a pecuniary advantage at all and hence could not indict"; and (2) "it is not one of those things that can be characterized in an indictment as unknown."

The thing intended by the perpetrator of the crime of blackmail to be extorted or gained is an essential element of this crime. The essential elements which go to make up a crime must 8-12. be definitely pleaded. Where the crime is defined in general terms, the indictment must specify the particular acts which were done by the accused. State v.Metsker (1908), 169 Ind. 555, 83 N.E. 241. The assertion that an essential element of a crime is unknown to the grand jury is tantamount to an attempt to plead a crime by omitting one of the essential elements necessary to complete the crime. Such a pleaded description is subject to a motion to quash. It has ever been the law that particularity of description in an indictment may be dispensed with, but there is a material difference between matters of description, such as a describing the kind of money stolen, and the essential elements which go to make up the criminal act. Matters merely of description may be stated in an indictment as unknown to the grand jury, but an essential element of the crime may not be so pleaded. Riggs v. State (1885),104 Ind. 261, 262, 263, 264, 3 N.E. 886; People v. Bogart (1868), 36 Cal. 245; People v. Taylor (1846), 3 Denio (N.Y.) 91; Wharton, Criminal Law (7th ed.) p. 252, § 290.

It must follow that the allegation of the thing sought to be extorted or gained cannot be pleaded in the language of the statute where the statute is general, but the averment 13. must descend to particulars, not necessarily to descriptive matter, which is purely evidentiary. UnitedStates v. O'Sullivan (1851), Fed. Cases, No. 15,974.

The finding of the court is that the thing alleged to have been extorted is not pleaded with sufficient certainty. The motion to quash the indictment ought to have been sustained. It is 14. ordered that this cause be remitted to the Marion Criminal Court, and that the motion to quash the indictment be sustained.

Judgment reversed.

Martin, J., dissents.