16 N.Y.S. 436 | N.Y. Sup. Ct. | 1891
Lead Opinion
The main question in this case is whether the obtaining of money from another, with his consent, induced by a threat to injure the business of the individual threatened, by persuading his employes to absentthemselves from work, is “extortion,” as that offense is defined in the Penal Code, §§ 552, 553, subd. 1. I held in the case of People v. Wilzig, 4 N. Y. Crim. R. 403, that it was extortion to procure money by fear induced by the threat to continue a so-called “boycott,” in which the elements of violence, intimidation, and direct injury to tangible personal property were prominent and marked features. It was also ruled in those cases that the threat “to do an unlawful injury to the property” of another, which is one of the statutory conditions of this offense, might be predicated of an intimidating attitude on the part of those engaged in the overt act without actual violence or direct
It will thus be seen that the offense now under consideration, though classed for the first time in the Penal Code as extortion, really completes the legislation against robbery, attempts at robbery, and cognate offenses. Section 552 of the Penal Code is in the alternative, treating extortion by force and fear as one thing, and extortion by official action as another. These two methods of extortion are separately defined in subsequent sections, but it is apparent from the language of the section providing the penalty for extortion by,force or fear (section 554) that the latter is but a supplement, under the name of “extortion,” to robbery in the first, second, and third degrees. This section (554) provides for such punishment only when the money or other property has been extorted by force or fear “under circumstances not amounting to robbery;” in other words, when the money or other property has been obtained “with the consent” of the complainant, and not “against his will,” for really the main distinction between robbery in some degree and this form of extortion lies just there. Robbery is the unlawful taking against the will by means of force or violence or fear of injury, immediate or future, to one’s person or property, (Pen. Code, § 224,) while extortion is the obtaining with consent by similar means. Thus, unless robbery could be predicated of the taking against the complainants’ will of the money here obtained with their consent, (that is, in case such money had really been taken against their will,) it is difficult to see how extortion can be sustained in a case where it was taken with their consent. It certainly would be a novel indictment for rob
There is another difficulty in the present case, and that is that the injury threatened must in itself be “unlawful.” Now, the abstention from work on tile part of the operatives was not unlawful. It is not claimed that they broke any contract of service or hiring, knowing or having reasonable cause to believe that the probable consequence of so doing would be to endanger human life, or to cause grievous bodily injury, or to expose valuable property to destruction or serious injury. Pen. Code, § 673. It is not, in fact, pretended that these operatives were working for the complainants under any special contract at all. On the other hand, they were not guilty of “conspiracy, ” for the reason that orderly and peaceable co-operation for the purpose of obtaining an advance in the rate of wages is expressly excepted from the conspiracy sections. Id. § 170. This exception was further emphasized by an amendment to section 675 of the Penal Code, which went into effect on the 1st of September in the present year, and which reads as follows: “But nothing in this Code contained shall be so construed as to prevent any person from demanding an increase of wages, or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered.” Thus the law is unmistakable that, so long as there is neither violence nor an attitude of intimidation nor interference with others, employes are free to work or to refrain from working, as they please; free individually, and free in combination. The attitude of the complainant’s employes, at the time the threat in question was made, was not, therefore, unlawful. It would seem to follow that a threat to induce a continuance of their lawful attitude could not of itself be unlawful, at least in the sense of criminal. Whether a civil action would lie for damages sustained by the defendant’s acts is another question, one with which we have nothing now to do. It is sufficient for the determination of this case that the defendant’s threat to use his influence to keep men from working for the complainants, however wrong morally, was not criminal. It was not a threat to do the complainants an unlawful injury, but to continue a condition of things which, even if injurious, was undoubtedly lawful. The act threatened—that is, the act of advising, persuading, or exhorting the men not to resume work—was not in itself indictable, and was no more unlawful than the act of the men in abstaining from work. The statutory crime does not consist of a threat to do an improper or unjust act, nor even of a threat to injure another’s business by lawful means, but to do an unlawful injury to the property of another. Whatever injury was being done to the complainants’ business at the time of the threat in question was not an unlawful injury, and it follows that the defendant cannot be said to have threatened to do an unlawful injury to such business. Por these reasons the judgment and conviction should be reversed, and a new trial ordered.
Concurrence Opinion
(concurring.) The defendant was indicted for extorting from the firm of Popkin & Marks $100 by means of a threat “that he would do an unlawful injury to their property; that is to say, to injure and destroy the said business of them, the said Popkin & Marks, and prevent and hinder them from carrying on the same.” The crime of extortion is defined by section 552 of the Code to be the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right; and the defendant claimed on the trial, and now claims before us,
It seems to me clear that there was no threat to do an unlawful injury to property. The defendant did not expressly threaten Popkin & Marks that he would do anything himself. There was no statement that he would prevent the men from working. What he said was that they -would not return'to work. It was certainly not unlawful for these workmen to refuse to work for Popkin & Marks, nor was it unlawful for defendant to advise them not to work. There was no threat, therefore, to do an unlawful act. Defendant did not, of his own accord, go to the place of business of Popkin & Marks, but was sent for by them; and his statement that the men would not return to work, even if that could be construed into a threat that he would prevent them from returning to work, was not a threat to do an unlawful injury to the property of Popkin & Marks because of the fact that, unless the men did return, Popkin & Marks could not advantageously continue their business. If one of Popkin & Marks’ employes had refused to work for them, such, a refusal, although it might have seriously affected their business, might have
Nor do I think that such a threat can be said'to be a threat to do an injury to property. There is no evidence that the defendant had any knowledge that Pop-kin & Marks had any unmanufactured goods on hand at the time of the occurrence in controversy, or that he knew, or had reason to know, that the refusal of the men to return to work would cause injury to any of their property. Pop-kin & Marks had a right to employ such men as they chose, and their employes had a right to work for whom they chose, and the mere supposition that the refusal of this particular body of men to work for Popkin & Marks would in some way embarrass them in manufacturing goods for their fall trade is all that there is to sustain the charge that this was a threat to injure property. But it seems to me clear that the evident intent of the statute is that the threat should be to injure a specific piece of property. There must be the existence of a res, and a threat to injure it. The section in question is part of chapter 5 of title 15 of the Penal Code. The title treats of crimes against property, and includes arson, burglary, and house-breaking, forgery and counterfeiting, larceny, embezzlement, and extortion. The word “property,” as defined by section 718 of the Code, would not include a man’s business, and there could not certainly be an indictment for larceny for stealing the business. The meaning of a threat to do an unlawful injury to the person of an individual would be a threat to in some way injure his body; and the threat to do an unlawful injury to his property, applying the words in their ordinary significance, would be in some way to injure some specific property. It could hardly be claimed that a threat to injure a person’s character or his professional reputation would be an injury to property within the meaning of this act; and yet such a threat, where the successful conduct of such person’s business depended largely upon his character or reputation, might seriously injure his business. It is a threat to injure the thing that constitutes the crime, not to do an act which indirectly may do damage to business or its successful conduct. I think, therefore, that the evidence was insufficient to sustain the conviction, and the judgment must be reversed, and a new trial ordered.
Dissenting Opinion
(dissenting.) The indictment charged the defendant with having obtained a check for the sum of $100, and of the value of that amount, from Abraham Popkin and Abraham Marks, who were copartners in trade, carrying on business in the city of New York as cloak manufacturers, by means of a threat made by him to them to do an unlawful injury to their
At the close of the case on the part of the people a motion was made for the acquittal of the defendant, which was denied, and the counsel for the defendant excepted to that denial. This motion evidently proceeded upon the theory that the threat which the jury could very well imply or infer from what is stated to have taken place was not such a threat as the law required to create the offense of extortion, and that position has been taken in support of the present appeal from the judgment. Whether the evidence was sufficient to place the case within the provisions of the law relative to this offense must depend upon the construction which should be given to the statute enacted to define and punish the crime of extortion. It has been declared by section 552 of the Penal Code of the state that “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.” And by section 553 of the same Code it has been declared 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, or to any relative of his, or to any member of his family.” Assuming the evidence of the witness Popkin to be reliable,—as that may properly be done, inasmuch as the jury appear to have accepted it as truthful,—the point is presented whether a threat to prevent the persons who had been upon the strike from returning to and entering the employment of the firm was a threat to do an unlawful injury to the property of this firm. It is stated in the evidence of the witness first sworn that they had on hand material, cut up, and ready for manufacturing, and not manufactured, and that what was cut and uncut amounted to the sum of about $50,000, and that was designed to be manufactured by the firm in the course of its business. It was also stated that the season for the sale of their manufactured garments closed about the 15th of April. The firm at the time had become, by the discharge of the persons who had been employed by it, incapable of proceeding with the manufacture of these garments, and had placed itself in the business carried on by it in a state of entire dependence upon the individuals who had been engaged in the strike; and the effect of what is stated to have been said to one of its members by the defendant was that this business should be interrupted, and necessarily remain in suspense, until the money which was demanded should be paid over. The defendant, according to the testimony of Mr. Popkin, asserted himself to be in such a relation to the persons on the strike, even after they bad adjusted their differences as to compensation, as to control their movements and prevent them from returning into the service of the firm, unless his demand was satisfied. By this interposition of his authority over the working people the belief is stated to have been produced that the persons would not return to their employment until this money was paid to the defendant; and that of itself was a threat on his part to injure the property or business of the firm, for the interruption of that business would necessarily be attended with loss to the firm; and a loss resulting from the suspension or interruption of the business would necessarily be an injury to property, and it was to avoid that injury that this money was paid over. The statute does not require the narrow construction insisted upon by the defendant’s counsel, for if has not been, either by its language or reasonable import, confined to the case of an actual injury to some specific article of property, but it has been made to include the threat to do any unlawful injury to property; and business is property, as much so as the articles themselves which are included in its transactions. Besides that, this term “property” has been
An exception was also taken to what was stated to have been said and done at one of the meetings held by the cloakmakers. Mr. Zipkin was the chairman of that meeting, and was, with the defendant, at the office of the firm when the prices were fixed; and not only from the evidence given on the part of the prosecution, but that also produced in behalf of the defendant, it was made to appear that he was their substantial representative, and that bis services were employed to harmonize the differences between the cloakmakers and this firm. And both on behalf of the prosecution, as well as the defendant, the proceedings of the meetings of the cloakmakers were proved, in order to exhibit their intention and state of mind concerning the resumption of their employment. They were in fact, as the evidence indicated the case to be, co-operating together. They asserted their claims, and the defendant endeavored to obtain such concessions as would satisfy these persons; arid there was consequently no impropriety in showing what was exacted by them as a subject-matter falling within the province of the defendant for negotiation and settlement. There was really no dispute as to their exactions, or the fact that they co-operated together to secure the concession of their terms, or the settlement upon others which should be satisfactory to them. Both parties were acting to bring about this result, and to attain it it became necessary to understand what the cloakmakers themselves required should be made in the way of concessions for advanced compensation for their services, and evidence of what took place at their meeting was admissible for the purpose of
The defendant was asked upon his own examination as a witness whether he kept the money himself,—that sum of $100. This was objected to, and the objection was sustained, and to that an exception was taken. The theory of the defense was that the defendant demanded this money not for himself, but as some compensation for the cloakmakers during the time they had been engaged in the strike; and the object of the inquiry was probably to show that he had paid over the $100 to them, or for their benefit. And, if no other evidence had been given concerning this money, it would probably have been error to have excluded this answer; but the witness himself had previously stated that he went with Mr. Zipkin, and cashed the check, “and got the money, and went with Mr. Zipkin to the office, and delivered the money to the cashier.” He also testified that he stated to Mr. Popkin that he took the money to be distributed between the working people of Popkin & Marks; that he had obtained it a,t their request, as they had instructed him, and did not receive it intending to appropriate any of it to his own use. And that, with the other evidence, included all that was required to be proved to relieve the defendant from this criminal accusation, if the jury had confided in his statement. He was also interrogated as to remarks that he had made at a meeting at which he was present as one of the speakers. But there was no error in taking his answer as to what he had said at the meeting as some evidence bearing upon his general intention in the control or management of the affairs of the unions. He stated generally that he believed that the working people had a right to unite themselves and form a union and ask for justice; and that, no doubt, he was correct in stating. This subject was very fully examined in Thomas v. Musical Union, (Sup.) 2 N. Y. Supp. 195, in which the writer examined the authorities accessible upon this subject, and it was there concluded that all persons had the right to prescribe the terms upon which they would perform their services, and that this was not only an individual right, but it was one which could be protected by the combination of two or more persons; and it was their right to refuse to render their services for any person who should be offensive or disagreeable to them, or with any person who should not, for any cause, receive their approval; that so far the law permitted all working people to combine together either for their individual or their mutual protection. And, while these views were not there ■expressly accepted by the other members of the court, they are still deemed to be well supported by the authorities; and the case in which ¿hey were expressed, as it was in fact decided, is no authority to the contrary, for the reason that the decision made by the majority of the court, as well as by the special term, was afterwards reversed by the court of appeals. Thomas v. Musical Union, (N. Y. App.) 24 N. E. Rep. 24. There was, accordingly, no infringement of the law in what the defendant himself in this manner stated he had said, nor by what he afterwards conceded to have been his additional statement; and no harm, therefore, could have resulted to him from what he admitted to have been his remarks at the meeting.
The verdict of the jury has been objected to as against the weight of the evidence. This objection has been raised upon the fact that four witnesses besides the defendant testified that they were present at the time when the money was demanded by him from Mr. Popkin, and that he demanded the money, not for himself, but to distribute or to divide among the persons who had been out of employment during the period of the strike. Further evidence was given by two witnesses, sworn on behalf of the defendant, as to statements made by Mr. Popkin that there was no extortion in obtaining the money. This, however, was denied by Popkin, and, in effect, also by his wife, who was present at one of the conversations.
