#### In re McCABE.

(No. 1,982.)

(Submitted October 6, 1903.

Decided October 26, 1903.)

*Criminal Law*— Extortion-—Threat *to Discharge*Employe.

Under Penal Code, Section 7, providing that the words “personal property” in the Code shall include money, goods, chattels, things in action, and evidences of debt, an employe’s right to work is not property; therefore a complaint ¿.charging a foreman with extorting money from an employe by a threat to discharge him did not charge the crime of extortion defined by Penal Code, Section 911, providing that fear such as will constitute extortion may be induced by a threat to do an unlawful injury to the person or property of the individual threatened.

AppltcatioN by William McCabe for a writ of *habeas corpus.*

Petioner discharged.

*Mr. J. H.*Duffy, and *Mr. J. II.*Tolaai, for Petitioner.

*Mr.*TP. *II.*Trippeiand *Mr. J. J.*McOajfery, for Respondent

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

On July 16, 1903, a complaint was filed in the justice of the peace court of Thos. E. Murphy, in Anaconda township, Deer Lodge county, charging the petitioner, Wm. McCabe, with the crime of extortion, committed on July 10, 1903.

The complaint alleges, that one Louis. Stanesich was employed by the Anaconda Copper Mining Company to perform work *29and labor at $2.50 per day; that petitioner was employed by the same company as a foreman, under whose direction Stanesich was working; that while these parties were so engaged, the petitioner unlawfully obtained from the said Stanesich the sum of $10, and that such stun was obtained from Stanesich with Ms consent, induced by the wrongful use of a threat made by the petitioner to' do an unlawful injury to the property of Stanesich, to-wit, a threat by petitioner to1 discharge Stanesich, from his employment unless he paid to the petitioner the sum named.

To this complaint' the petitioner entered a plea of not guilty, and upon a preliminary examination he was held to answer the charge in the district court, and committed to the custody of the sheriff of Deer Lodge county. Thereafter the petitioner sued out a writ of *habeas corpus,*which was made returnable before this court. The return of the sheriff shows that the petitioner is detained by virtue of the commitment issued by the justice of the peace court upon the conslusion of the preliminary examination. The sheriff also attaches to and makes a part of his return a copy of the information filed in the district court charging the petitioner with the same offense as that charged in the complaint.

The causa was heard upon the petition, which contains a copy of the complaint, and also1 a copy of the testimony given before the committing magistrate, and the sheriff’s retan.

The prosecution was instituted under the provisions of Sections 910 and 911 of the Penal Code, wMch read asi follows:

> “Sec. 910. Extortion is the obtaining property from another with his consent induced by wrongful use of force or fear or under color of official right.

> “Sec. 911. Eear, such as will constitute extortion, may be induced by a threat either (1) to do an unlawful injury to the person or property of the individual threatened, or (2) to any relative of his,' or member of his family. * * *”

Upon the hearing it was conceded by counsel for both parties that the entire,matter is to be determined by the interpretation given to Subdivision 1 of Section 911, *supra.*

*30Wbat is meant; by tbe; expression, “to do an unlawful injury to' tbe *property*of tbe individual threatened” ? If the employment of Stanesich, or bis right to. work, is ¡pfroperty within tbe meaning of tbe1 term as; used above, -then there w;as probable cause to' believe; the petitioner guilty of tbe crime charged against him; if it is not property within tbe meaning of that team, then no crime is charged, in the complaint or information, .and tbe petitioner is entitled to be discharged.

Section 7 of the Penal Code reads as follows: “7 * * *

The following words, [also] have in this Code tbe signification attached to them in this, section, unless otherwise apparent from tbe context: * * * 10. The word ‘property’ includes both real and personal property. • 11. Tbe words Teal property’ are co-extensive with lands, tenements' and hereditaments: 12. The words ‘personal property’ include money, goods, chattels, things in action, and evidences- of debt. * * *”

However lamentable it is that our lawmakers saw: fit to so circumscribe the meaning of the term “property,” or to- omit to include in Section 911 above a threat against one’s employment, it is; sufficient-for us to say they did so, and declare tbe law; as we find it, not as- we-might wish it to> be.

Applying tbe definition given in Section 7, *supra,*to the facts of this case, and it becomes quite apparent that the lawmakers never contemplated that the term “property” should be made to include manual labor, or the right of an employe to; work. While the right to pursue one’s lawful occupation untrammeled, save only by tbe law of the land, is recognized by our constitution- as one of the inalienable rights of man, the same as bis right to the free exercise of his religious profession, or his right to join a peaceable assembly for the commjon good, and to apply to those invested with the power of government for redress of grievance, it cannot be said to constitute property within the definition of that term as used above.

Neither can we look beyond our Code for a definition of the term, or extend the scope of the meaning given it by reference to> adjudicated cases, in other jurisdictions where the term “prop*31erty” lias been lield to be comprehensive enough to- include one’s employment or right to work. Our Codes establish the law of this- state respecting' the subjects to which they relate.

It is ordered that the petitioner he discharged.