But actual restoration for mitiga tion of pun ishment. S611. Whenever it is made to appear that prior to is a ground any information laid before a magistrate, charging the commission of embezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense to the indictment, but it authorizes the court to mitigate punishment in its discretion. Punishment for embezzlement. "Extortion" do fined. What threats S612. Every person guilty of embezzlement is punishable in the manner prescribed for fel niously stealing property of the value of that embezzled. And where the property embezzled is an evidence of debt or right in action, the sum due upon it, or secured to be paid by it, shall be taken as its value. Founded upon 2 Rev. Stat., 678, § 59. CHAPTER VI. EXTORTION. SECTION 613. "Extortion" defined. 614. What threats may constitute extortion. 615. Punishment of extortion in certain cases. 616. Punishment of extortion committed under color of official right. 617. Obtaining signature by means of threats. 618. Sending threatening letters. 619. Attempts to extort money, or property, by verbal threats. S 613. Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right. See note to section 584; also, as to extortion under color of official right, People v. Whaley, 6 Cow., 661. S614. Fear, such as will constitute extortion, may may consti- be induced by a threat, either: tute extor tion. 1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his or member of his family; or, 2. To accuse him, or any relative of his or member of his family, of any crime; or, 3. To expose, or impute to him, or them, any deformity or disgrace; or, 4. To expose any secret affecting him or them. ment of in certain S615. Every person who extorts any money or Punish other property from another, under circumstances extortion not amounting to robbery, by means of force or any cases. threat such as is mentioned in the last section, is punishable by imprisonment in a state prison not exceeding five years. ment of committed S616. Every person who commits any extortion Punishunder color of official right, in cases for which a dif- extortion ferent punishment is not prescribed by this Code or by some of the statutes which it specifies as continuing in force, is guilty of a misdemeanor. under color right. of official signature by means S617. Every person, who, by any extortionate Obtaining means, obtains from another his signature to any of threats paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge or right of action created, is punishable in the same manner as if the actual delivery of such property or payment of the amount of such debt, demand, charge or right of action, were obtained. threatening S618. Every person who, with intent to extort Sending any money or other property from another, sends to letters. any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat, such as is specified in section 614, is punishable in the same manner as if such money or property were actually obtained by means of such threat. Suggested as a substitute for the provisions of 2 Rev. Stat., 678, § 58, which are as follows: "Every person who shall knowingly send or deliver, or shall make, and for the purpose of being delivered or sent, shall part with the possession of any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, Attempts to extort money, or property, by verbal threats. or with any letter, mark or other designation, threatening therein to accuse any person of any crime, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property of any description belonging to another, shall, upon conviction, be adjudged guilty of an attempt to rob, and shall be punished by imprisonment in a state prison not exceeding five years." S619. Every person who unsuccessfully attempts by means of any verbal threat, such as is specified in section 614, to extort money or other property from another, is guilty of a misdemeanor. Compare 2 Rev. Stat., 690, § 2. Falsely personating an other. CHAPTER VII. FALSE PERSONATION, AND CHEATS. SECTION 620. Falsely personating another. C21. Receiving property in false character. 622. Personating officers, firemen, and other persons. 623. Obtaining property by false pretenses. 624. Obtaining property for charitable purposes. 625. Obtaining negotiable evidence of debt by false pretenses. 626. Using false check or order for payment of money. 627. Mock auctions. S.620. Every person who falsely personates another and in such assumed character, either 1. Marries or pretends to marry, or to sustain the marriage relation towards another, with or without the connivance of such other person; or, 2. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety; or, 3. Subscribes, verifies, publishes, acknowledges or proves, in the name of another person, any written instrument, with intent that the same may be delivered or used as true; or, 4. Does any other act, whereby if it were done by the person falsely personated, he might in any event become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture or penalty, or whereby any benefit might accrue to the party personating, or to any other person, Is punishable by imprisonment in a state prison not exceeding ten years. See 2 Rev. Stat., 676, § 48. property in false character. S621. Every person who falsely personates another, Receiving and in such assumed character receives any money or property, knowing that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or to that of another person who is not entitled thereto, is punishable in the same manner and to the same extent as for larceny of the money or property so received. See 2 Rev. Stat., 676, § 50. ing offi cers, fire men and other per sons. S 622. Every person who falsely personates any Personat public officer, civil or military, or any fireman, or any private individual having special anthority by law to perform any act affecting the rights or interests of another, or assumes, without authority, any uniform or badge by which such are usually distinguished, and in such assumed character does any act whereby another person is injured, defrauded, vexed or annoyed, is guilty of a misdemeanor. property pretenses. S623. Every person who, with intent to cheat or Obtaining defraud another, designedly, by color or aid of any by false false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment. See 2 Rev. Stat., 677, § 53. The words by "color or aid of any false token." &c., are employed in this and the next section instead of the words "by color of," &c., used in our existing statutes, in order that it may be clear that cases are embraced in which a false pretense is used in aid of the fraud, but such pretense is not the controlling inducement operative upon the mind of the party defrauded. At present, it is well settled that a mere assertion may be a "false pretense;" but it must be an untrue assertion of an existing fact, not a representation or promise as to the future (People v. Tompkins, 1 Park. Cr., 224; State v. Magee, 11 Ind., 154; Dillingham v. State, 5 Ohio (N. S.), 280); and it must be one adapted under the circumstances to deceive, notwithstanding the use of ordinary care and caution in giving credence to it (People v. Willianis, 4 Hill, 9; People v. Wood, 10 N. Y. Leg. Obs., 61; People v. Stetson, 4 Barb., 151); and it must have actually influenced the defrauded person to part with his property; for if the prosecutor knew the representation to be false at the time of parting with the property (Reg. v. Mills, 7 Cox Cr. Cas., 263; 40 Eng. L. & Eq., 562); or if he disregarded the pretense and relied on his own examination as to the fact in question (Reg. v. Roebuck, 7 Cox Cr. Cas., 126; 2 Jur. (N. S.), 597; 36 Eng. L. & Eq 631), the indictment cannot be sustained. These rules the Commissioners do not propose to disturb. But it is further held that though the false pretense need not be the only inducement influential with the injured party, it must be the controlling one. (People v. Crissie, 4 Denio, 525; see also People v. Haynes, 11 Wend., 557; People v. Herrick, 13 Id., 87.) This rule sometimes leads to a failure of justice; as, for instance, in the late case of Ranney v. People (22 N. Y., 413). In that case the accused represented to one Hock that he had employment for him at a distance in traveling to collect money and do other business; and he promised to give him certain wages therefor, upon condition that Ilock should deposit with the accused one hundred dollars as security for his faithful performance of duty. It was held that, although the representation and promise were false and fraudulent, an indictment could not be sustained. "There must be," say the court, "a direct and positive false assertion as to some existing matter by which the victim is induced to part with his money or property. In this case the material thing was the promise of the accused to employ the person defrauded and to pay him for his services. There was a statement, it is true, that the prisoner had employment which he could give to Hock; but this was obviously of no importance without the contract which was made. The false representation complained of was, therefore, essentially promissory in its nature, and this has never been held to be the foundation of a criminal charge. |