127 Misc. 300 | N.Y. Sup. Ct. | 1926
The defendants, after trial on the 20th and 21st days of April, 1926, were convicted of the crime of attempted extortion, and now apply to this court for certificates of reasonable doubt.
Extortion, in so far as it applies to this case, is defined by section 850 of the Penal Law to be “ The obtaining of property from another, * * * with his consent, induced by a wrongful use of force or fear * * The threat by which this fear may be induced is defined by subdivision 1 of section 851 of the Penal Law to be “ An unlawful injury to the person or property of the individual threatened.”
An indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” (Code Grim. Proc. § 275, subd. 2.) It must set forth With some particularity the substance of the threat which induced the fear, the wrongful use of which constitutes the crime of extortion. An indictment stating merely that fear was induced by a threat to do “ an unlawful injury to the person or property ” of the complainant would not be sufficient. Such an indictment would not sufficiently inform- the defendant of the nature of the charge against him. The object or thing to which the threat relates, and which is to be affected by its consummation, is a part of the threat itself, and must be stated with sufficient particularity to enable the defendant to meet a specific charge. In the present case the substance of the threat which induced the fear, the wrongful use of which constituted the crime, was “ to have him discharged from the union, of which the said William Kelly, James Grainger and John Locascio were Delegate, President and Vice-President, respectively.” Such an allegation Was necessary under sections 275 and 284 of the Code of Criminal Procedure. The nature of the threat having been alleged, the general rule is that it must be proved as alleged. (2 Bishop’s New Grim. Pro. 401.) The defendants were convicted upon the threat that “if he [complaining witness] didn’t give them $200 that they would prefer charges against me for having non-union men on the job and not let me get a Boss’ card, and would make me a lot of trouble.” In his charge to the jury the learned trial judge did not specifically point out either the threat alleged in the indictment or the one charged upon the trial. The jury found a verdict of guilty, as charged in the indictment. In my opinion there was a material variance between the indictment and the proof. Section 293 of the Code of Criminal Procedure provides for an amendment of the indictment to conform to the proof, but declares what variances are immaterial, provided that the defendant is not prejudiced. The
The defendants assign as a further reason for the granting of this motion the admission of the testimony of an occurrence before Mr. Justice Callaghan in a habeas corpus proceeding, the sole purpose of which was to secure a reduction of bail by the defendant Grainger. The defendant Grainger upon the trial had testified in his direct examination that he did not see the money alleged to have been passed. In cross-examination the district attorney elicited from the witness the fact that he remembered the habeas corpus proceeding. Referring to the occasion when the _witness was before Mr. Justice Callaghan, the district attorney then asked: “ Q. Do you remember your counsel in your presence telling Judge Callaghan that that $100 was given to you for a Boss’s license card, didn’t you hear him say that? ” This was objected to, the objection overruled, and an exception taken. “ Q. Do you remember that? A. Yes. Q. And that is not the fact, is it? A. No, it is not., Q. When your lawyer told that before Judge Callaghan, when you were trying to argue your writ, you allowed him to make a false statement in the presence of the courtf ” While the witness gave no direct answer to the question, he Was asked immediately afterwards: “ Q. When your counsel said that to Judge Callaghan, you knew that was untrue? A. Well, I wasn’t paying any attention to what counsel was saying.” The last question was then repeated to the witness, whereupon his counsel objected as follows: “ Mr. Visel: I object to it and ask to have it stricken out as being an improper method of impeaching a witness. The Court: No I do not so regard it.” The matter seems then to have been dropped. As a matter of substantive law, it may be true that the defendant Was bound by the admission of his attorney made to Mr. Justice Callaghan, and also it may be true that on
In that case the trial court had stricken out all of the objectionable evidence and did all in its power to cure the error, but the
To justify this court in granting a certificate of reasonable doubt it is not necessary to arrive at a positive conclusion that the trial court erred. It is enough that, in the opinion of the court, there is a serious question of law involved.
For the reasons set forth' in this memorandum, I will grant the motion and issue the certificates.