#### People of the State of New York, Resp’ts, *v.*Andrew J. Wightman, Impleaded, etc., Appl’t.

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Criminal law — Blackmail — What amounts to — Penal Code, § 658.

A false accusation in writing of an act involving moral turpitude, known by the party making it to he false, accompanied with a suggestion that legal proceedings will he taken, unless the person against whom it is made purchases silence, may he a threat within the statute (Penal Code, § 558; although in form the accused is simply called upon to render satisfaction for that which, if the charge were true, would entitle the accuser to pecuniary compensation. The mere form in which the threat is made is not decisive.

2. Same — Indictment — When averment of knowledge op falsitt op CHARGE SUFFICIENT.

In an indictment for blackmail under Penal Code, § 558, the letter which was written by an attorney at law in behalf of an unmarried female, stated that the writer had been informed by said female that there had been *788sexual intercourse between her and the prosecutor, and that she was with child by him; the letter distinctly intimated that legal proceedings would be taken unless the prosecutor made voluntary provision for the mother and child, and he is asked whether he is willing to do this to avoid publicity. *Held,*that the averment in the indictment that the defendant, for the-purpose of extorting money from the prosecutor, threatened to expose him-to disgrace by falsely charging him with the criminal acts stated, fairly implies that defendant knew the charge contained in the letter was false, and. the admission in the record that evidence was given tending to prove the acts charged in the indictment, must have been intended to cover, not merely the bare act of sending the letter, but the circumstances averred in connection with the act, that is, that it was a scheme to extort money by-making a false charge.

Appeal from a judgment of the supreme court, general term,, first department, affirming a judgment of the Oyer and Terminer on conviction of defendant under an indictment for blackmail.

*T. W.*Tyng, for appl’t; *Randolph B. Martine,*District-Attorney, for respt’s.

Andrews, J.

Omitting the superfluous words in the indictment, it charges, among other things, in substance, that the defendant and others, well knowing the contents of the letter and with intent to extort money from the prosecutor did, on a day and at a place mentioned in the indictment, feloniously send and cause to be forwarded to, and received by, the prosecutor, the letter set out in the indictment, threatening to expose him to disgrace by falsely and publicly accusing him of having sexual intercourse with one May A. Thatcher, an unmarried female, resulting in her pregnancy of a child likely to be born a bastard.

The letter set out in the indictment purports to have been, written by one of the co-defendants, an attorney-at-law, in behalf of May A Thatcher, and was addressed to the prosecutor.

The letter, after stating that the writer had been informed by May A. Thatcher, that there had been sexual intercourse between her and the prosecutor, and that she was with child by him, proceeds as follows : “ I suppose you are aware that under these conditions you are liable for the support of the child and the mothér’s expenses during her sickness. Are you willing to make suitable provision for such liability, and thereby avoid publicity, or will it be necessary to take legal steps in the-matter ? ”

The defendant was tried and convicted. The evidence is. not contained in the record. The bill of exceptions states that the People, to maintain the issue on their part, introduced evidence tending to prove the acts charged in the first five counts of the indictment. It must be assumed, therefore, that the evidence justified the jury in finding that the defendant knowingly sent a letter to the prosecutor, falsely charging him with having *789liad illicit intercourse with May A. Thatcher, resulting in pregnancy, and that it was sent for the purpose of extortion.

It is claimed on behalf of the defendant that to support a conviction under section 558 of the Penal Code, for sending a threatening letter, the letter complained of must not only in itself contain a threat, but it must on its face be a threat to do •an illegal thing.

It is doubtless true that a demand for indemnity for a wrong made in good faith, accompanied by a suggestion that legal proceedings will be resorted to unless satisfaction is "voluntarily made, is not a threat within the statute, although the wrong is on the' disclosure of which would bring disgrace upon the guilty party. But if the party making the demand knows that he has suffered no wrong, a threat to prosecute unless settlement is made, might, we conceive, bring the case within the ■statute, although on the face of the letter the party writing it might seem to be asserting only his legal rights. In other words, a false accusation in writing of an act involving moral turpitude, known by a party making it to be false, accompanied with a suggestion that legal proceedings will be taken unless the person against whom it is made purchases silence, may be a threat within the statute, although in form the accused is simply called upon to render satisfaction for that which, if the charge was true, would entitle the accuser to pecuniary compensation.

The mere form in which the threat is made is not decisive.

The letter in this case distinctly intimated that legal proceedings would be taken to enforce the liability, unless the prosecutor made voluntary provision for the mother and child, nnd he is asked whether he is willing to do this to *avoid publicity.*

The averment in the indictment that the defendant, for the purpose of extorting money from the prosecutor, threatened to expose him to disgrace by falsely charging him with the criminal acts stated, fairly implies that the defendant knew the charge contained in the letter was false ; and the admission in the record that evidence was given tending to prove the acts charged in the indictment must have been intended to cover not merely the bare act of sending the letter, but the circumstance averred in connection with the act; that is, that it was a scheme to extort money by making a false charge.

We think the indictment was good in substance and that the conviction should be affirmed. See *People*v. *Thompson,*97 N. Y. 313; *Reg.*v. *Hendy,*4 Cox, C. C. 243; *Rex.*v. Tucker, 1 Moody Crown Cas. 134.

All concur.