Hill v. State , 50 Okla. Crim. 59 ( 1931 )

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of assault with intent to extort and was sentenced to serve a term of three years in the state penitentiary.

The information charges defendant assaulted one W. T. Donahoe by pointing a pistol at him with the intent to extort money. "Extortion" is defined by section 2133; an assault with intent to commit a felony is defined by section 1758, Comp. St. 1921. It appears from the record that at the time charged Donahoe claimed defendant owed him some money secured by a note against which the statute of limitations had run and was attempting to get a renewal or acknowledgment of it. After some negotiations, Donahoe, under a previous arrangement, went to the residence of defendant to see him in reference to the note. In the conversation and quarrel that followed, defendant claimed Donahoe owed him $4,000 on some previous business transactions, became abusive, and demanded that Donahoe have the amount in the mail box on the following day. During the conversation and quarrel he pointed a pistol at Donahoe several times.

As we read the testimony, there is no substantial evidence of an intent by defendant to procure from Donahoe a present delivery of any money or property, but merely that he have money in the mail box the next day, in discharge of a claimed debt. To procure an oral promise to pay money at a future time by threats to do personal injury under the circumstances proven falls short of an assault with intent to extort. If the extortionate means had been used to obtain a present delivery of money or property or an instrument creating a debt, demand, charge, or right of action, a different question would be presented. McKeown v. State, 34 Okla. Crim. 381, 246 P. 659. Defendant's conduct is more that of a fool than of a criminal. He should have been prosecuted under section 1999, Comp. St. 1921, for pointing a pistol.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.