The San Francisco call., 1908-03-10
Judges Uphold Appellate Branch and Find Indictment Faulty

the opinion of the district court of APP
peal
The court is unanimous in the
opinion that the district court or ap-
peal was correct IN it's conclusion that
The Indictment was insufficient, in that
il did not show that the specific injury
10 the property OF the restaurant keep
ers threatened by the defendant was
an unlawful injury"
It is very clear that TO constitute
the crime OF extortion committed by
means OF any threat to injure property
o5 the person threatened. the injury
threatened, as was, in effect said by
the .iesrned district court, must be in
Itself unlawful, irrespective of whether
or. not the purpose with which the
threat is made IS to obtain money to
which the person threatening IS not
entitled Section $50 OF the penal code
provides that the threat must be such
IS is mentioned in the preceding sec
tion. and the preceding section, in sub
division ] (the only subdivision here
sppicable). says that the threat must
bee one TO 90 an unlawful injury 10
the person or property of the inoi-
vidusl threatened. or TO any relative
of his. or member of his family The
word ~unlawfu1' as used dn this stat
NE qualities the word injury" alone
one which the person threatening has
sn absolute legal right 10 do, he can
not be held TO have threatened to do
an unlawful injury TO the property.
even though his motive ia making the
threat is to obtain from the person
threatened money to which he is not
entitled and. consequently. il cannot be
held TO be an injury within the pro-
visions OF sections 519 and $50 OF the
81 Sc
so clear IN this respect that no room
is left for other construction. This
conclusion is strengthened by the dis
tinction between SAID subdivision ] OF
section sig and each of the other sub
divisions Of that section, wherein the
element of unlawfulness OF the act
threatened is omitted. That this is the
proper construction of the law under
consideration was fully recognized by
the court Of appeals Of New York in
considering a precisely similar provi-
sion OF the penal code OF that state, In
4 case much relied on by the respon-
dent CPeople vs. Hughes, lS7 y. Y,
81: 81 y. T., 1105)
What is meant by the term "unlaw-
fuI injury? Giving TO such term the
broadest meaning possible under the
authorities II can include no injury
that is not Of such a character that IL
AL lldN WtEA AOHliHtlAtQ 90 lHltcNrAfA
il would have constituted an sctionable
wrong, an injury for which an action
for the resultant damages could be
maintained against the defendant, or
which, if merely threatened, could be
enjoined IN equity IL the remedy at law
were deemed inadequate
Apply this TO the case al bar:
II was within the lawful power OF
the police commissioners OF San Fran
cisco TO withhold from the restaurant
keepers a license TO sell liquors al re-
tail ia their restaurant. no matter how
great the pecuniary loss thereby caused
10 the business. 1t was also lawful for
any person. by legitimate persuasion
or argument. 10 endeavor 10 prevail
upon the commissioners TO refuse the
license. although such person was
actuated By the malicious intent to in
jure the restaurant keepers and cause
them pecunisry loss. The conjunction
Of the lawful pers uasion inducing the
lawful refusal of the license. with the
malicious motive Instigating the per-
suasion. would rot convert the lawful
act Of refusing the license into an un-
lawful one. nor make the resulting in
jury unlawful or actionable. in order
10 make an injury from the lawful ael
Of a third person a cause Of action
against the person inducing the act
such act must be procured by some
means which the law denounces as un-
lawful We think a review of the su-
rhorities satisfactorily shows that the
means empioyed must be something
which the law considers sufficient IL
take away the free consent Of the third
person-in that case the police com
nlisSioners-to the act which causes
the injury. the consent essential to the
validity Of contract. The means re-
ferred 10 are thus enumerated In sec
tion 1857 Of our civil code: An sp-
parent consent is not real or free when
obtained through 6D duress- f2)
menace; 90 fraud; (s) undue influence;
"r l5t mistake. contract obtained
-hy such means is declared 10 be void
able. II A by such means induces B tc
do lawful act injuring the property
of {. an action win lie by c against A
for the damage thereby caused. Bui
II A merely persuades or advises B tc
do the Injurious act no action viii lie
against A in favor OF c.
we are not here speaking Of an act
unlawful ia itself. in which case A
might be liable as an accomplice. We
refer TO acts by b which, though in
furious TO C's property. are Lawful
in character. but which he would moi
have done but for the unlawful means
used by A upon him.
The difference between an unlawful
injury and an act which, though moral.
~ wrong and in fact injurious. doe.
not furnish legal grounds Of action i.
Illustrated by the two cases of Boysor
rs. ThorRe. IS Cal, SIS, and People VS.
Hughes. supra
IN Boyson vs.. Thorne. Boyson ant
his wife were lodging at the Palace
hotel. rhorne, maiiciouslv intendine
10 fnjure Boyson in person and prop
crty induced Newlands the proprietor
OF the hotel to eject Boyson and his
wife from the hotel. whereby l8oysor
sustained damage. This was don.
without the use Of duress. menace
fraud. deception or undue inauencs
upon Newlands. the only means alleged
being lawful advice and persuasion
with malicious intent 1t was helt
that no unlawful injury had been com,
mitted BY Thorne upon Boyson. tn.
reason being that The means used Il
induce the injurious act of NewIand.
were not unlawful in character ant
that the malicious use Of lawful mean.
10 induce a lawful act did not max,
the resulting injury unlawful
In people vs. Hughes the defendan
was the head Of q labor organization
known as the knights OF labor AdIel
& Brothers We're engaged in sellins
goods at wholesale. and the success
Of the business depended upon tn,