(Court of General Sessions of Delaware. New shall send or deliver, or in any manner cause

(115 A.)

ment to one John A. Walsh, threatening to do injury to the property of the said John A. Walsh, to wit, did make an oral statement to the said John A. Walsh, in substance and to the effect that if he, the said John A. Walsh, did not pay a sum of money to the said Robert W. Kramer, he, the said John A. Walsh, would be deprived of the employment in which he, the said John A. Walsh was then and there engaged, with intent then and there and thereby to wrongfully gain from the said John A. Walsh a sum of money, against, etc.

should pay to the accused a dollar a week for every week he was working; that W. then paid to the accused $2.50 for 2 weeks, whereupon the accused gave him a card with "Permit" written upon it; that W. paid no more money; that, six or seven weeks later, the accused again came to him and asked him about his permits, he replying that he did not have any; that the accused said to him, “You want to get something," W. inquiring why, to which the accused remarked, To the indictment counsel for accused set that on the same evening W. was discharged "Well, you will have to get off the job;" forth the following causes of demurrer:

That the statute (Rev. Code 1915, § 4804) under which the indictment was framed and found, was (1) clearly intended to prohibit threats to do injury to the person of an individual, that is to say, physical injury, but the said indictment charges only such injury as might result from the deprivation of the employment in which the said John A. Walsh was, at the time alleged in the indictment, engaged; that the statute was (2) clearly intended to prohibit threats to do injury to property itself as such, that is, physical injury to corporeal property, but the said indictment charges a violation of that portion of the statute prohibiting threats "to do injury to any property," in that, as alleged, the accused made an oral statement to the said John A. Walsh to the effect that if the said Walsh did not pay a sum of money to accused, he, the said Walsh, would be deprived of the employment in which he, at the time alleged in the indictment, was then and there engaged.

Against the causes of demurrer the state cited People ex rel. Short v. Warden of City Prison, 145 App. Div. 861, 130 N. Y. Supp. 698.

RICE, J. [1] The court are of the opinion that Rev. Code. 1915, § 4804, is not restricted in its meaning as argued by counsel for the defendant in support of the demurrer. The section in terms is most comprehensive, and from the language used, it clearly appears that threats to do injury of any character to person or property are brought within its scope. The section is to be construed as if it read:

from his said employment.

The accused testified that he was the business representative of the local union of the United Association of Plumbers and Steamfitters, and was then asked, "What were the duties of the business representative of that union?" which question was objected to as immaterial.

Counsel for the accused contended that, where the question of intent is involved, all the surrounding circumstances from which the intent may be inferred are admissible; that if the jury should believe that the accused, in enforcing the rules of his organization in which he, in good faith, believed, made the alleged statement to W., their verdict should be one of acquittal, but, if they should believe that the accused, for the purpose of his own enrichment, made the alleged statement, they should convict.

In reply, the state contended that it is not necessary to prove a specific intent, but only the intent to do the thing which was done. Brown v. State, 7 Pennewill, 164, 74 Atl. 836, 25 L. R. A. (N. S.) 661.

RICE, J. [2] The substance of the offense charged against the accused is that he, with intent to extort or wrongfully gain any money or other property, made, or caused to be made, to another person (named) an oral statement threatening to do injury to that person, or to his property, and therefore the question for the jury to determine is whether the accused did make the alleged threatening statement with the intent as alleged in the indictment; and the fact that the defendant at the time was enforcing the rules of an organization to which he be

"Whoever shall make or cause to be made to any other person any oral statement or communication, threatening to do any injury to any person or any property, with intent thereby to extort or wrongfully gain any money or other property, shall be deemed guilty of a misde-longed has no bearing on the alleged threat, meanor.'

The demurrer is overruled.

or the intent with which it was made. The objection is sustained..

The accused then made denial of the stateThe accused was brought to trial at the ment alleged to have been made by him to same term of court; and the state introduced the prosecuting witness, and testified that, evidence to show that about September 15, on the occasion such statement was imputed 1920, W. was employed as a plumber's helper to have been made, he asked W. if he wishduring the erection of the Industrial Trusted to pay for a permit to which W. replied Company Building in Wilmington; that that he did not intend to pay any more monshortly after he began work on the build-ey; that the accused then said, "All right, ing the accused approached him and told sir; it is up to me, then;" that the accused him that he could continue to work on the had no other conversation with the prosecu

2. That defendant must be acquitted unless there is proven to the satisfaction of brought, mean injury to a person physically or to physical property.

(116 A.)

It is with a violation of the provisions of "threatening to do any injury to any person the section mentioned that the accused is or any property." charged.

If you find from the evidence that the accused did not make the oral statement in substance as alleged in the indictment, or that such statement, if made, was not made as a threat to do any injury to the prosecuting witness or his property or that if made,

or wrongfully gain money, then your verdict should be not guilty, otherwise your verdict should be guilty.

In the statute and in the indictment there are three essential elements of the offense with which the defendant is charged. It is necessary in order to secure a conviction for the state to prove beyond a reasonable doubt that the defendant made to the prosecuting it was not made with the intent to extort witness Walsh an oral statement in substance and to the effect, as alleged in the indictment, that if the said Walsh did not pay a sum of money to the said defendant that he the said Walsh would be deprived of the employment in which he was then and there engaged; that such statement was in the nature of a threat to do injury to the said Walsh or to his property; and that such statement was made by the said defendant with the intent thereby to extort or wrongfully gain money.

[3] A threat is defined to be a menace of such a nature as to unsettle the mind of a person on whom it is intended to operate, and to take away from his acts that free voluntary action which alone constitutes consent.

[4] Extortion in its ordinary meaning is the taking or obtaining of anything from another by means of illegal compulsion or oppressive exaction.

You are to determine this case from the evidence you have heard from the witness stand, taking that evidence in connection with the law as the court has stated it to you.

The jury disagreed.

(96 Conn. 582)

RICHMOND v. CITY OF NORWICH et al.

(Supreme Court of Errors of Connecticut. Aug. 4, 1921.)

1. Municipal corporations 724-Not liable for injuries done in performance of public duty.

In addition to the above definition of ex- A municipality is immune from liability for tortion, we will say that the words "to ex- injuries done in the performance of a public tort" are used in the statute in their broad-duty for the public benefit, and not for its own

est meaning.

The state has introduced evidence to show that the accused on the 27th day of October, 1920, made an oral statement to the prosecuting witness, Walsh, threatening to do injury to Walsh or his property, with the intent to extort or wrongfully gain money. The accused denies that he made the statement as alleged to the prosecuting witness or any other statement of a threatening nature, or that he made any statement to the prosecuting witness with the intent on his, Kramer's, part to extort or wrongfully gain money.

As we have stated, in order to secure a conviction it is necessary for the state to prove and for you to find that the accused made to Walsh, the prosecuting witness, the oral statement in substance as alleged in the indictment, as a threat to do injury to the prosecuting witness or his property, and that such threatening statement was made to Walsh by the accused, with the intent to extort or wrongfully gain money, as alleged in the indictment.

[5] A statement made by one person to another unlawfully threatening such other with the loss of present employment, would constitute a threat to do injury to the property of such other person, within the intent and meaning of the words of the statute;

corporate profit.

2. Municipal corporations 733 (4)-Cannot plead governmental immunity for injuries caused by negligence of municipal reservoir guard.

A city, in collecting, distributing, and vending water, being engaged in the management of its property for its own corporate benefit or profit and that of its inhabitants, cannot plead governmental immunity for injuries caused by the negligent acts of one employed by it to guard a municipal reservoir.

3. Municipal corporations 747 (2)-City held liable for negligence of reservoir guard appointed by superintendent employed by water commissioners.

Though the Norwich city council had not approved of the board of water commissioners' by-laws or regulations for the preservation, protection, and management of the waterworks, as provided by the city charter (7 Sp. Laws 1871, p. 200, § 85), the city is liable for injuries to an automobile passenger shot by a municipal reservoir guard appointed by the superintendent employed by the board, though such appointment was not authorized by it, nor approved by the council, it being the duty of the vesting in it the duty of maintaining the waterboard, in view of section 79 of the charter, works, to fulfill such duty, even in the absence of approval of its by-laws or regulations by the council, since the public service cannot be jeopardized by the council's failure to approve, nor by the board's failure to make by-laws.

4. Appeal and error 1048 (6)—Exclusion of gency was properly excluded, as immaterial, and cross-examination as to whether witness had raising collateral issues, plaintiff having contaken other photographs than those testified | ceded defendant's right to put armed guards at to on direct examination held not materially harmful.

In an action against a city for injuries to an automobile passenger shot by a guard while approaching a municipal reservoir, where plaintiff's witness testified as to having taken several photographs of the locus, the exclusion of a question on cross-examination as to whether he had taken other photographs showing a fence across the road, and other prominent objects in the roadway intended as notice to trespassers, though legitimate cross-examination, did not materially harm defendant, which could have secured such photographs and put them in evidence.

5. Appeal and error 1050 (2) - Answer to question, though irrelevant and irresponsive, held harmless.

In an action against a city for injuries to an automobile passenger shot by a guard while approaching a municipal reservoir, an answer of a witness, when asked to describe the reservoir as to its surroundings and attractiveness to the people, that he and others frequently visited it to take in the scenery, though irrelevant and irresponsive, was too inconsequential to predicate harmful error upon.

6. Damages 173(1)-Testimony as to how injured plaintiff was providing for herself held admissible to corroborate claimed loss of earning power.

In a personal injury action, questions as to how plaintiff was providing for herself, to which she replied that she had been staying with a cousin, not paying anything, were admissible, as tending to establish her claimed inability to pursue her former occupation.

7. Evidence 355(5)-Hospital bill held admissible.

In an action for personal injuries, where plaintiff testified as to the amount of her hos pital bill, such bill was admissible in evidence. 8. Witnesses 269 (6)-Cross-examination as to whether driver of car, fired on by reservoir guard, knew other cities were guarding water supply properly excluded.

In an action for injuries to an automobile passenger shot by a guard while approaching a municipal reservoir, cross-examination of the driver for the purpose of showing lack of care, as to whether he knew the United States was at war, and that other nearby cities were guarding their water supply, held properly excluded, where the witness had not testified that he did not know the reservoir was guarded.

9. Municipal corporations 742 (5)
mony as to what other cities were doing to
guard public works during war properly ex-
cluded in action for injuries from negligent
shooting by reservoir guard.

the reservoir, and not having questioned the
selection of a guard, his equipment, or the
notice given those coming in contact with him.
Ruling of
10. Appeal and error 971(2)
trial court as to whether expert properly
qualified not disturbed.

Whether an expert is properly qualified to give an opinion being for the trial court, its ruling, unless it shows an abuse of discretion, will not be disturbed by the appellate court. 11. Evidence 152, 322(2), 475-Character may be proved by general repute or opinion of acquaintances, but not by specific instances.

Character, whether in the sense of the entire character or a single trait thereof, may be proved by the estimate in which the individual is held in the community, evidence of general repute affording the basis for an inference as to actual character, or by the opinion of those who have known him; but character is not provable, except in certain cases, by specific instances or inferences therefrom.

12. Municipal corporations 742 (5)-Testimony as to specific acts of city employee on other occasion erroneously admitted.

In an action against a city for injuries to an automobile passenger shot by a guard while approaching a reservoir, testimony of a witness that shortly after the shooting he drove to the reservoir, and was stopped by the guard, who, told him he had a good mind to blow his brains appearing much excited, raised his gun and out, was erroneously admitted.

13. Appeal and error 1050(1)—Admission of evidence to show character of defendant's employee held harmful, in view of court's charge and jury's answers to interrogatories.

In an action against a city for injuries to an automobile passenger, shot by a guard while approaching a municipal reservoir, testimony of a witness that he drove to the reservoir shortly after the shooting and was stopped by the guard, who, appearing much excited, raised his gun and said he had a good mind to blow his brains out, was not harmless, where the court, in its charge, referred to it with emphatic detail, and the jury answered interrogatories as to whether defendant was negligent in selecting such guard, and whether the latter was an improper and incapable person to perform such duties in the affirmative.

14. Municipal corporations 742 (5) — Evidence of defendant's employee's violent temper held erroneous in negligence action.

In an action against a city for injuries to an automobile passenger, shot by a guard while apTesti-proaching a municipal reservoir, testimony of a witness that he drove to the reservoir shortly after the shooting, and was stopped by the guard, who, appearing much excited, raised his gun and said he had a good mind to blow his brains out, was erroneously admitted, the action being one of negligence, to be resolved by acts done by the guard, and not by proof of his violent temper or other mental character

In an action for injuries to an automobile passenger, shot by a guard while approaching a municipal reservoir during the war, testimony as to what other cities were doing to guard their public works during the war emer-istics.