25 N.Y.S. 1072 | N.Y. Sup. Ct. | 1893
Lead Opinion
It is alleged in the indictment that at the city of New York, on the 4th day of December, 1892, the defendant at- > tempted to obtain $150 from Catherine Amos by threatening to accuse her of keeping a disorderly house, and, by means of such threat, put her in fear. The following are the sections of the Penal Code under which the defendant was convicted:
“Sec. 552. 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. Sec. 553. Fear such as will constitute extortion may be induced by a threat: * * * (2) To accuse him * * * of any crime.” “Sec. 34. An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” “See. 685. A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury, and directs the defendant to be tried for the crime itself.”
The crime of extortion is not committed unless the person parting with his money is induced to do so by the wrongful use of force or fear, or under color of official right. No force was used by the defendant, nor did he obtain the money under color of official right; and there is no charge in the indictment of the use of force, or of the assertion of official right. In the criminal law, putting in fear is constructive violence. 2 Russ. Crimes, (5th Ed.) 89-93. When fear is a necessary ingredient of a crime, it must actually exist at the time of the alleged commission of the offense; and if the person alleged to have been injured part with his money or property, without at the time being in fear, a crime is not committed. Rex v. Jackson, 1 East, P. C. addenda, 21; 2 Russ. Crimes, (5th Ed.) 104;
“It is also to be noticed, that in cases in which, as in rape and larceny, the act, to be indictable, must be against the prosecutor’s will; and when the prosecutor, by such inveigling, consents to the act, these particular forms •of prosecution cannot be maintained.”
That no injury is done to the willing is a maxim of the criminal, as well as of the civil, law, if the one who consents is capable of consenting, and consents uninfluenced by fear, force, or fraud. This rule is applicable, however, only to the alienable rights of the person consenting. The consent of a person that another might take his life would be no justification of a homicide. When acts are committed, the criminality of which depends on whether the person on or against whom they are committed assents to or dissents from their commission, and between the attempt and the execution there is interposed the consent of the person against whom perpetrated that they may be committed, an indictable offense is not made out. Whart. Crim. Law, (8th Ed.) § 177. It is plain that a conviction cannot be sustained under section 685 of the Penal Code, and that the district attorney acted wisely in not presenting an indictment for the crime of extortion.
The crucial question in this case is whether a conviction for an attempt to commit the crime of extortion can be sustained where the evidence conclusively shows the absence, on the part of the person against whom the crime is attempted, of a state of mind necessary to make possible the perpetration of the crime attempted. We take it to be a general rule, having few, if any, exceptions, that unless the completed act, accomplished as intended and attempted, will constitute a crime, no step or steps taken to perpetrate the act will amount to a criminal attempt. Bish. Crim. Law, (8th Ed.) §§ 747, 728. We are referred to People v. Moran, 123 N. Y. 254, 25 N. E. Rep. 412, as an authority to sustain this conviction. In that case the defendant committed a trespass on a person with intent to steal, and, had he accomplished the act which he attempted and intended, the crime of larceny would have been committed. That case is within the rule above stated. A boy so young that he is deemed incapable of perpetrating a rape cannot be convicted of an attempt to commit that offense, nor of an assault with intent to ravish; but he may be convicted of an assault and battery. People v. Randolph, 2 Parker, Crim. R. 213; 1 Bish. Crim. Law, (8th Ed.) § 746, and cases cited. At common law, if a person intending to steal an article take it with the owner’s consent, it is not larceny. Thorne v. Turck, 94 N. Y. 90-95; 2 Bish. Grim. Law, (8th Ed.) § 811; 1 Whart. Crim. Law, (8th Ed.) § 915. In such a case the completed act, accomplished as intended, not being a crime, none of the steps taken, being ingredients of the offense, would constitute a crime, and the taker could not be convicted of an attempt to commit the crime of larceny. If an assault should be made on a man dressed as a woman, with
The learned recorder correctly laid down the rule in his instruction to the jury in the following propositions:
“(3) If you find that he did make such a threat, you must then find, before you can convict, that the woman Clifton was by such threat placed in fear, and that it was only through fear she was induced to agree to part with her money. (3a) If you find that this woman did agree to pay the defendant money, and in doing so acted of her own free will, then there was not an attempt to extort the money; and if you have any reasonable doubt on this point you must give the benefit to the defendant, and acquit him.”
As we have before stated, there is no evidence which tends to show that the woman acted through fear, the uncontradicted evidence being that she induced the defendant to receive the money from her. The jury failed to follow the plain instruction given by the court, and the verdict should be set aside.
The people proved that on several occasions between October 13 and December 4, 1892, the defendant and Catherine Amos were in each other’s company upon apparent terms of intimacy, driving, eating, and drinking, each in turn entertaining the other. The defendant, when on the stand, testified that he had so associated with this woman. The effect of this evidence was twofold: to discredit the defendant, and to show that he had an opportunity, by threats or by promises of protection, to induce the woman to give him money. It appears by the evidence that George C. Gran I, a discharged employe of the society, had visited Catherine Amos and other such persons, and offered, for sums of money, to prevent, prosecution by the society of which the defendant was the agent, which was known to the directors of the society. The defendant testified that he associated with Catherine Amos for the purpose of obtaining from her a written statement or an affidavit of the particulars of Grant’s proposition to her. In this connection the defendant was asked: “Q. After you reported the matter to Dr. Parkhurst and Mr. Morse, of the executive committee of the society, under whom you were acting, did you receive from them directions to pursue the matter, and to obtain, if possible, any statements of alleged blackmail from the woman Clifton, (Amos)?” This was objected to, and the evidence called for by the question was excluded, and an exception taken. Frank Moss and Thaddeus D. Kenneson, two directors of the society, were sworn in behalf of the defendant, by whom he offered to prove that the officers of the society gave him instructions to obtain a statement from Catherine Amos in respect to Grant’s proposition to her. This was excluded, and an exception taken. In these rulings the court erred. In a criminal case, when it is proved that the defendant has committed
“Q. Did the executive committee of the society at this meeting next subsequent to October 14, 1892, give any instruction to Gardiner? A. Yes, sir. Q. So far as they relate to Grant and his actions, please state them. A. The instructions we gave him, as far as X can recollect, were that, in consonance with his own view of the matter, as he had previously expressed it to me privately, and in consonance with our views, which were the same as his, he should seek to make a case against these women, and that he should also strive to secure from them at least an affidavit to the effect that Grant was, in the name of the society, attempting to levy blackmail upon them. We also instructed him that he should use such means as he saw fit in order to secure such affidavits. These instructions were oral.”
This did not cure the error. The defendant had the right to prove the fact by more than one witness, and it is well known that facts testified to in a deposition and read ip evidence have not the same force with a jury as those testified to by witnesses in the presence of the court. Again, this evidence related only to the instructions given by the executive committee to Gardiner. The defendant had offered to show that he had not only received instructions, but that he acted pursuant to and by reason of those instructions. For these errors the judgment should be reversed, and, as it is apparent that a conviction cannot be sustained under this indictment, the defendant should be discharged.
PARKER, J., concurs.
Dissenting Opinion
(dissenting.) With the conclusion of my associates as expressed in the opinion of Mr. Justice FOLLETT, that because there was no evidence which tended to show that the woman acted through fear the verdict must be set aside, and the prisoner discharged, I cannot concur. • The prisoner was indicted and tried for an attempt to commit the crime of extortion, and the record shows that the evidence tended to establish the existence of every other element constituting the crime of extortion except that the woman in paying the money was actuated in so doing by fear. This
“To constitute the crime charged there must be a person from whom the property may be taken, an intent to take it against the will of the owner, and some act performed tending to accomplish it; and when these things occur the crime has, we think, been committed, whether property could in fact have been stolen or not. In such cases the accused has done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt" to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. [Citing People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Parker, Crim. R. 104; Mackesey v. People, 6 Parker, Crim. R. 114; Amer. & Eng. Enc. Law, tit. “Attempt.”] So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or in fact had been, committed; and the punishment of such offender is just as essential to the protection of the public as of one whose designs have been successful.”
The answer to the claim here made, that because the crime of extortion was not possible in the absence of fear on the part of the complainant, therefore an indictment and conviction upon evidence as and for an attempt to commit such crime is likewise impossible, I think is to be found in the language just quoted from the opinion in People v. Moran, which is throughout strengthened by the citation of numerous authorities. Thus, among others, reference is had to the case of Com. v. Jacobs, 9 Allen, 274, wherein Justice Cray says:
“Whenever the law' makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal,*1080 a person taking that step with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt it could not be fully carried into vtfect in the particular instance. Upon this principle, on an indictment under a statute against passing or disposing of forged bank notes with intent to defraud, it has been held no defense that those to whom the notes were passed knew them to be forged, and therefore could not be defrauded.”
. And again, in the case of the State v. Wilson, 30 Conn. 500, referred to in the opinion, the court there said:
“The perpetration of the crime was legally possible, the person in a situ- „ aüon to do it, the intent clear, and the act adapted to the successful perpetration of it; and whether there was or not property in the pocket was an extrinsic fact not essential to constitute the attempt.”
And, after quoting with approval many of the cases, the opinion in People v. Moran says:
“There are numerous other cases in this country, analogous to those above cited, in which it has been held that an attempt to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed.”
It is unnecessary, however, that I should pursue this subject .further, as I have sufficiently explained the views I entertain,—that while to constitute the substantive crime it would be necessary in an indictment to aver, and upon the trial to prove, every essential ingredient enumerated in the definition of the crime, this is not requisite in an indictment or upon a trial where the charge is an attempt to commit that crime. While, therefore, in the ease at bar, to establish the crime of extortion, it would have been necessary to aver and prove that through fear the woman had delivered the money to the prisoner, yet the failure by his threats to produce such fear would not prevent an indictment and conviction for an attempt at extortion, provided every other element requisite and essential to constitute the crime were present. In addition to this ground, my associates have concluded that it was error to have excluded certain evidence offered by the prisoner, tending lo show that in what he did he acted under the instructions of the society for the prevention of crime and certain of its officers. In the view that the rulings of the trial judge in excluding such evidence was error, I concur. These, however, upon a new trial, could be cured, but from their conclusion upon the main ground that “it is apparent that a conviction cannot be sustained under this indictment, and that the defendant should be discharged,” I dissent.
