People v. Weinseimer

102 N.Y.S. 579 | N.Y. App. Div. | 1907

Laughlin, J.:

The charge upon which the defendant was convicted is, in,effect, that on the 31st day of December, 1903, he,, then being president of a labor union, obtained from one George J. Essig the sum of $1,000 in money and seven promissory notes, aggregating $1,700., by fear induced by a threat made to Essig, who had a contract for the plumbing work on “ The Chatsworth ” apartment house on Seventy-second street, near Riverside Drive, owned by the JohnsonEahn Company, that unless said sum of money and notes were delivered to the defendant work could not be resumed on the contract, the men at that time being out on a strike.

The provisions of the Penal Code under which the indictment was found and conviction had aré sections 552, 553 and 554. Section 552 defines extortion as follows.: “ 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.” Section 553-defines “ what threats may constitute extortion,” so far as material to the appeal, as. follows: “ Fear, such as will constitute^ extortion, may be induced by a threat: 1. To do an unlawful injury tq the person or property of the individual threatened, or to any relative of his or to any member of his family.” Section 554- provides that “ a person who extorts'any money or other property from another, under circumstances not amounting to robbery, by means of force or a threat mentioned in the last two 'sections, is punishable by imprisonment not exceeding five years.” Section 561 of the Penal Code, contained in the same chapter^* with the sections already quoted, provides that “ it is immaterial whether a threat, made as specified in this chapter, is of things to be done or omitted by the offender, or by any other person.”

Tlie defendant was president of Plumbers’ Local Ho. 2 of the city of Hew York, which was composed of journeymen plumbers. There was also an organization of master plumbers, known as the Master Plumbers’ Association. There existed between the two. associations an agreement by which the members obligated themselves to work for and employ only members of the respective associations. The contract for the plumbing work on this apartment house had been first let to one Kendall, who was not a member of the Master Plumbers’ Association, but who employed on the work about twenty-two plumbers who were members of defendant’s union. George F. Johnson, who was president of the Johnson-Kahn Company, was called by the People and testified, in substance, that On or about the 4th day of Hovember, 1903, a man who called upon him professing that the object of his visit was in regard,to an “advertisement in a plumbing journal,” disclosed his real purpose to be to inform him that a strike was threatened on the building and to arrange a meeting between him and one Selly as “ a man who could probably help me out;” that up to this time the . company-had heard nothing of a threatened strike, but that he was persuaded there was something to it and arranged to meet Mr. Selly the next day ; that on being introduced to Selly by the alleged canvasser the next day, Selly said he wanted to introduce him to “ somebody',” and without disclosing who the “ somebody ” was or discussing the threatened strike, made an apyiointment for the following day, at which time he introduced him to the defendant, thereupon leaving them together in Bryant Park ; that the defendant then said he was going to call a strike on the building because the owners were “lumping the job” and the contractor was not a member of the Master Plumbers’ Association. It seems that the term “ lumping” is used to designate a method of doing work where the contractor is only the figurehead for the owner, who purchases the material and assumes all tire responsibility in connection with the contract, and the “lumper” merely furnishes the labor and acts as superintendent upon an agreed compensation for his services. Johnson further testified that he denied that the company was “lumping” the contract, and undertook to convince the defendant, who-said : “Well, you know we do not have to prove that to anybody but ourselves that he suggested he would ask Kendall to join the association, to which the defendant replied, “Well, there isa-big likelihood that he won’t get in,” and then said, “I can fix this matter for you, though;”' whereupon the witness asked, “ How can you fix it % ” and the defendant said, “ Well, it will cost you some money; you are making, considerable out of this job," doing it the way yon are,, making $10,000, and you ought to give me at least $2,500 ;” that he informed defendant that that was out of the question and he did not think the, company would give anything, but suggested that after the work Was completed, if the company should have no trouble with strikes, it would make the defendant a present of $500, to which the defendant answered that that would not be cigar money for the “ bunch” and that he was representing some people down town, and- that his union aud the boss plumbers had a working agreement, and that there was some one else who had to come in on "the “ divide,” and upon the witness saying, “AIL right, Mr. Weinseiiñer, then that ends it,” the defendant said, “Well, you had better think it over and meet me here in a week,” which the witness promised to do; and that during this conversation the defendant informed the witness that he was president of the union. The defendant admitted that he had an interview with Johnson at the time and place specified, but claimed that he came on Selly’s invitation, who introduced Johnson as a subscriber, who wished to talk with the defendant; that Johnson brought up the subject of the trouble and spoke of Kendall not being .a member of the association and of desiring to have him join, and apparently as an inducement to obtain the defendant’s-influence manifested a-willingness to-give him- valuable information concerning the races, and he denied that there was any talk concerning the $3,000 or $2,500, as testified to by Johnson. Johnson further testified that he met the defendant again in Bryant Park -a week- later and declined to submit to his demand, but renewed his offer to give him. $500 if there should be no strike, to which the defendant replied that that was no proposition at all, and if the witness would make him a moderately liberal proposition he might talk business, and on parting the defendant said, “ There is no need of being bad friends, when you do get in trouble up there, you can call me up if you like,” and lie gave the witness his telephone number. The defendant admitted this meeting also, but testified that Johnson requested his assistance in getting Kendall into the association and said to defendant, “ If there is any way that yon can arrange this matter, if you can see that this man was admitted, and there would be no trouble on the job * * * I will make you a present of $500,” to which the defendant says he replied that there was nothing he could do, but that if Johnson wanted to malee him. a present, he could not very well stop him¡ and he denies that there was any talk on this occasion about the $3,000 or $2,500. This last interview was on or about the thirteenth of November, and on the sixteenth the strike was ordered and the men left work. It is conceded, however, that the strike was duly ordered in accordance with the rules and regulations of the union. The court instructed the jury that the evidence was insufficient to warrant them in .finding that the defendant “ took any part improperly ” -in bringing it about. After the men struck and before Essig obtained the contract, the union passed a resolution declaring that it was “the sense of this organization that the men taken out of the shop of Kendall are entitled to waiting time.” The owners then entered into a contract with Essig to do the plumbing work. The contract was signed on the 21st day of December, 1903. Essig attempted to commence work the next day, but was informed by Alwater, a delegate of the union, that the men were entitled 'to “ waiting time,” which would have to be paid before they resumed their work, but Essig was permitted to do a' small repair job and was allowed two men who worked on that day. The court instructed the jury that the demand for waiting time was made by order of Local Ko. 2 and that the defendant was not responsible therefor. On December twenty-third Essig saw one Finn, another delegate of the union, who also informed him that the “ waiting time ” would have to be paid before the work could be resumed. Essig informed the delegates that he was willing to pay the “ waiting time ” and wanted to know how much it was. The delegates said that they did not know But would ascertain and inform him. Essig. saw no ;-one connected with the work from December twenty-third until December twenty-eighth, when he met Alwater who told him that he"had been unable to find out how much the “ waiting time ” was or to whom it was due. Essig then asked if there was any way to get the privilege of the floor at their association, and Alwater said he would ask the president. On that evening'Essig went to the meeting of the union and was introduced to the defendant, who was president, by Alwater. He was desirous, of starting the work tlíe next morning, and. for the purpose of paying the waiting time he had a certified check in his pocket for $1,000. He asked the defendant for the privilege of . the floor, which was refused, and the defendant said that he was top busy to talk with him, but to come around to his office the next day at twelve o’clock, at which time he would; see. him. It is undisputed that Essig and the defendant had an inter- , view on the twenty-ninth of December. Essig testified that' lie met the defendant on that day pursuant to appointment, and that they went into- a cafe and sat down in one of the booths* whereupon defendant asked to see his contract and he exhibited it to him', at the same time informing him that the job. amounted to about $22,000; that he then asked "defendant,. “Why are you holding my men up,” to which the defendant answered, “Waiting time that is. due on the-job has got to be paid to the men that, were pulled out on it with Kendall,” to which the witness answered, “I am perfectly willing to pay them and have been,” but that he did not know the amount or the names, and asked defendant for that information, to which defendant replied, “ I will have the delegates find that out, but that is not in a hurry, anyway.; ” that the witness then said* “ If that is not in a. hurry I would like to start the job immediately, and I will leave the check right up with yon ; ” that the defendant then said, “How, you ain’t in the plumbing business for your health* but to make money., and I .ain’t running the labor end of it for the love of it either. How, * * * yoh have got a $40",000 Contract here 'and will make about $15*000. What I want is $3,000, and if you don’t give it "to me, you nor any other son of a bitch will start that job.”. Later-ón the witness was-asked,/’When Weinseimer-told you that unless the $3,000 were paid neither you nor any other soil of a bitch could go to work on that job, did you believe him ? ” and he answered, “ I did.” The witness further testified that he asked the defendant how he wanted the money, to which the defendant answered, “ I will take $1,000 down; I won’t take a check ; they will - never catch me the way they catched Hi*. Parks; the balance we will settle later ; ” that the witness said he would think over the matter, and the defendant asked how long he wanted to think it over, and on being informed that -he wanted until the following day, .replied, “You meet me at my office, 95 Nassau street, between twelve and one,” and gave the witness his telephone number and instructed him to telephone in case he could not come down, so that he, the defendant, would not waste his time. The defendant’s version of this interview was that Essig called to assure him of the fact that' he had received the contract for this work and that it-was legitimate, and to ascertain if it was satisfactory to the defendant, and was informed that the Master Plumbers’ Association was the organization to decide whether the contract was right, and that his union had no grievance, except that it required that the “ waiting time,” should be paid and he referred Essig to the delegates Finn and Alwater to ascertain the amount and to whom it was payable*and he denied that he made any demand for money. Essig, in rebuttal, denied the defendant’s version of the interview and further testified that he met the defendant on the thirtieth of December, pursuant to the appointment; that after, sending' the stenographer out of the room the defendant asked him what he had decided to do and was informed that he had decided to pay, but thought the amount was too much, and that $2,500 was enough, to which ■ the defendant replied that he could not take $2,500; that “ I have got to divide it up with other people and the least I will take is $2,700;” that he then told defendant he would pay it, and that in answer to an inquiry the defendant said he would take $1,000 down and the balance in seven notes payable at Essig’s shop, made out in blank with respect to the name of the payee, the first for $200 and'the other six for $250 each, payable respectively on the tenth day of each successive month, and the defendant asked when he would be ready to pay the money and was informed at “ any time,” whereupon defendant asked the witness to meek him at the same place the next day ; that the witness then asked the defendant if he could start the job, to which the defendant replied, “ló that ain’t in a hurry ; you meet me at the appointed time to-moriow,’’ which the witness promised to do. The defendant denied that he had any conversation with Essig on that day.' After the interview with the defendant on the thirtieth of December Essig went to the office of the company and informed the treasurer that he was to pay the defendant $1,000 in cash and give him seven notes, and the treasurer filled out the notes in accordance with Essig’s suggestions,. which conformed to the directions of the defendant, and Essig signed them. Essig then surrendered to the Hamilton Bank the certified check, which on the twenty-eighth day of Decembér he ' had drawn against the proceeds of a $1,000 check received from the owners for the purpose of paying the' “ waiting time,” and obtained $1,000 in cash, and on the following day took the notes and cash to the defendant’s office, between twelvé and ope o’clock, pursuant to the appointment, and according to his testimony delivered them to the defendant who counted the money and put it in his pocket and retained it and examined the notes and inquired the name of. the witness’ bank, and on being told that it was the Hamilton Bank s,aid that he had changecl his *mind about having the notes payable at the witness’ shop and requested that the witness make out seven other notes payable at the Hamilton Bank,- leaving the name of the payee blank as before, and said .that he would have an'innocent party sign them and run them through tho bank or that he might call the witness up and have him bring tho money down to pay the notes which would be delivered as they fell due, to which the witness expressed assent, and then asked if he could start the work and the defendant said, “All right, go ahead, I will notify the delegates that everything is all right” and the witness answered, “ All right,” and departed for “ The Ghátsworth.” • The defendant admitted that he had an interview with Essig on this day between eleven and twelve o’clock, but he' testified that the ' conversation related to the “ waiting time ” of which Essig complained as excessive, and denies that he received the money or the notes and the' conversation respecting the same. Before going to defendant’s office on this day, Essig had been at the building and says, in substance that two members of the union were there in the morning about nine o’clock, and five or six before eleven-thirty, but that they did not actually begin the work until after, he paid the money to the defendant, although they were preparing to resume work before that hour, and that he had no further difficulty in starting the work satisfactorily ; that he did not know who ordered the men to return to work, but that he had no talk with the delegates about the men returning to work at that time and had not sent for them, otherwise than his conversation with the defendant. Evidence was introduced in behalf of the defendant tending to show that some of the •men resumed work in the morning, but that was controverted. After the work had been resumed and on the 4th day of January, 1904, Essig paid the “ waiting time” which was upwards of $900, and he testifies that on the next day he saw the defendant and delivered to him seven notes in all respects the* same as those first prepared, with the exception that the place of payment was changed to the Hamilton Bank, which the defendant received and retained. The seven notes originally prepared and all but the last of the secomd set, which was not due until August tenth, were received in evidence, as were Essig’s check book and the cheeks. One of the notes was payable on the tenth day of each month commencing with the tenth day of February. ' According to the testimony of Essig, about the eleventh or twelfth of February the defendant telephoned him under the name of Brown, but subsequently disclosed his identity, and asked if tire witness could come down to meet the first note; that the witness replied that he would be down within a couple of days, and on the seventeenth of February he drew $200 from the bank, the amount of the first note, and called upon and delivered it "to the defendant, who put it in his pocket and retained it, and surrendered the note; that as each of the other notes, except the last, fell due or within a few days thereafter, he drew from the bank $250 and delivered it to the defendant and received the note which it paid. The paying teller of the bank corroborated Essig with respect to the respective, transactions with the bank. The defendant-denied that the notes were ever delivered to him or that they were paid to him. He admitted, however, that Essig came to his office about four or five weeks after December 31, 1903, and testified that he did not see him again prior to the 17th day of August, 1904, but he claimed that Essig’s visits on those occasions were with respect to trouble that he had about “testing” on the work and with, respect to obtaining cheaper help, matters which were not within the- jurisdiction of the defendant. Essig, in rebuttal, denied this testimony. The defendant’s stenographer -testified that she saw Essig in the defendant’s office two, or three times between the ■ 1st of January and the 1st of July, 1904, at intervals of four or five weeks. _ '

The payment of the last note was-not proved by the People, but was brought out by'the defense on Essig’s cross-examination-. In ■connection with this fact, the defense showed that,there was a general strike in August; that the men on “The Chatsworth” job went out with others, quitting on August sixteenth ; that shortly prior to August sixteenth, the defendant endeavored to telephone' . Essig, but was unable to get into communication with liim. Essig testified that on August seventeenth' he had. conversations with the owners, with an attorney named Cohn and a representative .from the district attorney’s office, relative to his transactions with the defendant, and was provided with $250 in bills, some, of them being marked; that from -the district attorney’s office he telephoned to the defendant and asked, “ Why he pulled out my men ; ” that defendant denied that he pulled them out, and on being asked if he knew that they were out, said that he did and that he was trying to get the witness on the wire a couple of days and said, “ Toil know what the trouble is,” and the witness said, “ I suppose the. reason you pulled them out was because I was not down with the other money,” to which the defendant answered, “Tes ;” that witness.then asked the defendant if he could' see him; that defendant said he was awfully busy, but that if “you can come down in ten minutes I will give you five minutes.” Essig then went-down to see the defendant and the latter suggested that they go to the office of the People’s Security Company (where -it appears that the attorney for his union had an office) and went into a private office and had a conversation, the substance of" which is that the defendant liad learned that the district attorney was investigating his -conduct in this matter and’ that, for that reason he had destroyed the last note, but -he asked for the. amount of it which the witness paid over and the defendant counted, and while he was counting it the witness coughed, as a signal evidently to the detectives who were supposed to be in hearing. The testimony of Essig indicates that the defendant, therefore, became suspicious, for he said that he was informed that Kahn, a member of the owner corporation, had been before the district attorney, and he asked if this money which Essig gave- him was Kahn’s money, and thereafter left the room, asking the defendant to wait a minute, and remained absent about a minute. After the defendant returned they went down stairs, and the defendant said, “ You know, Essig, that under the new law, the Prince law, you are just as guilty as I am.” When they reached the ground floor the defendant was arre.-ted by the detectives, but there is no evidence that any of the marked money was found on him. With respect to this interview the defendant testified in substance that it only con-' sisted in the discussion of the reasons for the strike in August, and he denied that there was any payment of money of that they went into any private office. The testimony of other witnesses was introduced by the defense", evidently with a view to showing that Essig’s story that he and the defendant went into one of the private offices was not true. The testimony of these witnesses, however, was contradicted by their own admissions or by other evidence, and it does not appear to be convincing.

•The conversations had between the defendant and Johnson prior to the first strike were received under the exception and objection of the defendant, that they were incompetent and immaterial. The purpose of the evidence at the time it was offered was not stated, nor was the effect of it limited by the court in its reception.

At the close of the People’s case, and at the close of the evidence, counsel for defendant moved to dismiss the indictment upon the ground that the evidence was insufficient to show the commission of the crime. The motions were denied and exceptions were duly taken. These exceptions are urged as grounds for reversal. The learned counsel for the defendant contends that the language shown to have been used by the defendant did not per se constitute a threat to do an unlawful injury to the property of Essig, or instill fear in the mind of Essig that it would be carried into execution. We are of opinion that the evidence was sufficient to show all the material elements of the crime. The facts bring the case fairly within the doctrine of People v. Barondess (61 Hun, 571) wherein the Court of Appeals affirmed the conviction upon the dissenting opinion of. Hr. Justice Daniels at General Term (133 N. Y. 649) and within the case of People v. Hughes (137 id. 29) which followed it. In the Bárondess case the defendant was president of an association of'cloak operatives. The complainant was an employer of cloak operatives who had quit work owing to a controversy ever the rate of wages. As a result of negotiations the woflcingmen agreed to return but failed to do so. The complainants inquired of the defendant the reason for this and was informed that it' was because they had not settled with him and he said to them, “Ton have'got to pay me five hundred dollars to have "your people back again to wbrk.”" There, ás here, the defendant finally compromised by taking less than he had first demanded. In that case the defendant representedthat he controlled the employees, and the complainant testified that he believed that the defendant had power to keep the men from returning to work. It was there held that an injury to one’s business is an injury to property within the provisions of the Penal Code defining the crime of extortion, and that a loss -resulting from the suspension or interruption of business Would ¡constitute an injury to property. It is true that in the case at bar the defendant did not expressly represent that he controlled the striking employees and the complainant did not expressly testify that he believed that the defendant would keep the men from returning to work unless his demands were acceded to. The evidence, however, fairly warranted the jury in finding those facts. All known difficulties had been adjusted and there appears to have been no reason why the men did not return to work, except the influence and control exercised over them by the defendant as president of their union. The moment his unlawful demand was complied with the men resumed work and there was no further trouble until the complainant failed to pay the last note ; and the defendant admitted, according to the testimony of Essig, that such failure, was the reason for the strike at that time. The complainant testified in substance that he believed the defendant’s threat to prevent the resumption of work until his extortionate demand was complied with. The defendant -had shown" his authority as president of the- union and over members by' peremptorily refusing to; give - the complainant a hearing before the union, when one" of the delegates, at least, knew that the complainant was anxious .to resume work and desired such hearing, with a view to presenting his grievance to the members. From the standpoint of the complainant the facts fairly justified a belief on his part that unless he paid the money and gave the notes, the men would not be permitted by the defendant to return .to work and that the defendant had sufficient influence over them to carry out his threat. All grievances having been adjusted, the threat of the defendant, in effect to exercise his influence and control over the members of the union, to prevent their returning to work on this apartment building unless the money which he wrongfully exacted was paid, constituted'a threat to do an unlawful injury to the property of the complainant calculated and sufficient to instill fear in the complain: ant and induce him to pay the money. There is no express evidence of the damages that would have been sustained by the complainant had he, instead of complying with the defendant’s request, refused his unlawful demand and permitted the defendant to execute his threat. The amount of damages which he would have sustained is of no consequence. It is sufficient if it appears that he would have sustained damages. It would seem that the People might have readily shown more clearly that damages would have been sustained by Essig'; but we think their failure to do so does not require a reversal. It is claimed that Essig’s contract with the owners for the work, which was in writing, was not in fact what it purported to be, and that the owners were themselves to furnish the material, and the complainant was merely to be paid for superintending the work. Upon either theory it is "manifest that he would have sustained damages. It is not to be presumed that he would have been paid for superintending work while the work was not being done. We think it presumptively appeared that the complainant, in his business, either as contractor or superintendent of building construction work, would have sustained damages had the defendant carried his unlawful threat into execution.

The court ruled that it was immaterial whether the money which ■- Essig delivered to the defendant was his own or that of the Johnson-Kahn Company, and ruled out evidence offered by the defendant tending to show that it belonged to the company. It may be that Essig was acting as agent of the owners in receiving the money which he subsequently delivered to the defendant, because it was originally received to pay the waiting time, -but it was not material from what source it' was received. The defendant wrongfully-exacted money, and the complainant was liable to suffer loss if he did not obtain it from some source and deliver it to the defendant. I It is urged that the rulings on this subject constituted prejudicial error. According to the plain -provisions of section 552 of the Penal Code, the rulings were correct. The material issue in that regard was not whose money was it, but did the defendant receive-it from the complainant.

The appellant contends that it was error to receive evidence of the defendant’s threat to call a strike on the- building when the former contractor, Kendall, was doing the work. We are of opinion that the evidence was clearly competent upon the question *of the ntent of the defendant by the threat made to Essig to do an unlawful injury to his property. The defendant pleaded not guilty. It was essential for the People to prove every element of the crime and the intent of the defendant to do an unlawful injury to the complainant’s property was one of the. essential elements of the crime. His former acts in relation to this contract work characterizéd the threat, and would tend to remove any doubt that the jurors might entertain as to his purpose of wrongfully inducing the men to -remain out upon the strike without just cause. It is evident, that he had determined to use his office as president of this union and his influence with the members to wrongfully exact a-large amount of money, evidently based on a rough estimate made by himself of a percentage of the profits on the work, as a condition of allowing the members of his union to be employed by any contractor, or even by the owner in the 'completion of the work. It mattered not to him whether Kendall or Essig or some one else was .the contractor. He had unlawful designs on the work and pro, ceeded early in the history of the plumbing work to put his precons ceived plan into execution. Since he threatened Johnson to call a strike on Kendall unless his unlawful demand -was satisfied, it was a reasonable inference, in view of his threat to Essig, that lie" wrongfully intended to refuse to permit the men to return to work until the like demand made upon Essig was satisfied. It is urged on the appeal that the defendant’s threat to" Essig was innocent, and it was" doubtless so argued before the jury. The fact that the defendant had recently claimed that he had sufficient influence with-his union in effect to call a strike at will, because, although there may have been good ground under the rules of the union for a strike, he assumed to be able to avert it provided he received the money which he wrongfully exacted, tended strongly to show, in connection with other evidence, that in making the threat to Essig he intended to wrongfully exert his influence with the journeymen plumbers to induce them to refuse to return to work until he gave his consent, or to wrongfully exercise his authority as president in withholding such consent. Doubtless the members of the union misjudged the defendant, for they appear to have placed explicit confidence in him and to have submitted blindly to his rule. Upon receiving the money and notes the defendant promised, in effect, that the men should return' to work; and it is evident that the order for their return emanated from him, for there is no other explanation consistent with the testimony of Essig, which the jury doubtless believed, of how they came to return to work. The evidence of the prior attempt, therefore, shed light on the motive and intent of the defendant in making the threat to Essig, and indicated a preconcerted plan on his part to prevent the performance of this contract work unless he should, without right or authority, receive a large percentage of the profits to be arbitrarily and wrongfully exacted, and being closely connected in time and similarity of circumstances, it was competent both upon the question of motive and intent and as showing the successive steps in a preconceived plan which culminated in the crime for which the defendant has been convicted. (People v. Sharp, 107 N. Y. 467 ; People v. Shea, 147 id. 99 ; People v. Zucker, 20 App. Div. 363; affd. on opinion of Patterson, J., 154 N. Y. 770; People v. Molineux, 168 id. 264, 305.) On the trial of an indictment for uttering forged paper, where the real. issue was as to whether the defendant knew that it was forged, it has been held competent to show the utterance of other forged paper by him under similar circumstances and aboht the same period of time, upon the theory that such proof established a common plan and identity of method so connected as tends strongly to overcome any claim of innocence in uttering the forged paper for which the indictment was found. (People v. Dolan, 186 N. Y. 4.) In People v. Putnam (90 App. Div. 125; affd. on opinion below, 179 N. Y. 518), which was one of the so-called “Sick Engineer Cases,” this.court s'aid: “It .is well settled that in cases of this kind where the fraudulent intent is an element of the crime, similar frauds df the same character and closely connected in point of time, are competent evidence to show the intent with which the crime was committed; and the mere fact that they tend to prove an independent crime does not render such evidence incompetent. It is competent to show the criminal intent of the parties directly connected with the transaction which is necessary to 'constitute the crime.” In People v. Van Tassel (26 App. Div. 445; affd., 156 N. Y. 561), where there was a joint indictment for subornation of perjury, it was held, on a separate trial of- one of the defendants, that evidence that they had endeavored to induce other witnesses to testify falsely upon the same trial was competent as tending to show motive and intent, and as relating to the same transaction'and as done for the same purpose. In People v. Doty (175 N. Y. 164), on the trial of .an indictment for feloniously receiving stolen property, it was held that evidence that the defendant had previously received property stolen by the same thieves, but from other owners, was admissible on the question of guilty knowledge of the defendant.

At the close of the main charge the court was requested to instruct the jury that “The jury caiinot consider tile statement of the witness, George Johnson, that the defendant asked him for $3,000, as corroborative of the testimony of Essig that the defendant . asked Essig for a sum of money.” The court declined to charge “ in the language requested.” Counsel for the .defendant excepted and assigns this exception as ground for,reversal. Neither in'the offer nor in the reception of the testimony of Johnson Was its application limited, nor was there a request or even suggestion on the part of the defendant that it be limited. No specific reference was made to it in the charge, and the jury were not instructed with respect to its application. It is contended that the request which was refused was, in effect, a request to limit the application of that testimony. The only theory upon which this request to charge could be proper, would be that the evidence when received should have been limited to the question of motive and intent. If counsel for the defendant was of the opinion that it should -.have been so limited, he should, either at the time the evidence was received, or before or after the court instructed the jury, have pointedly drawn the attention of the court to that proposition. This, however, he failed to do. It was not proper to seek to have testimony thus received generally without any suggestion that its effect should be limited, by picking out the testimony of a particular witness and requesting the court to instruct the jury that it could not be considered as corroborative thereof. The court subsequently charged, at the request of counsel for the defendant, “ That there is no direct testimony by any witness besides Essig to corroborate the statement of Essig that he was asked for any sum of money by Weinseiraer December 31st, 1903.” The jurors doubtless understood from this instruction that the testimony of Essig was not corroborated by the testimony of any other witness. It is reasonable to infer that such was the object of the request, since as no other witness testified to' having overheard the conversations between Essig and the defendant the request could have served no other purpose. We am of opinion, however, that the instructions given on this subject were more favorable to the defendant than the law required, and one opinion has already been briefly expressed. Ordinarily, such evidence is competent only on the question of motive and intent, but here the evidence was competent generally as tending to show a previously conceived plan and determination on the part of the defendant to commit the crime of which he has been found guilty. Perhaps, owing to the fact that his former threat was to Johnson and before Essig became the contractor, the" evidence may not have been strictly admissible as tending to show a previous attempt to commit the same crime, which would render it competent generally (People v. O'Sullivan, 104 N. Y. 481; People v. Wagner, 180 id. 58), because the crime as finally committed consisted in extorting the money from the succeeding contractor, but it is improbable that the personnel of the contractor figured in the defendant’s mind. And it is to all intents and purposes except as to the individual who happened to have charge of the work as contractor at a particular time and whose individuality did not enter into the consideration, an attempt to commit the same crime. Since it has been settled that a prior attempt to burn the same building or rape the same female is competent gen- < erally as tending to show a preconceived plan and purpose to commit the crime which, of course, would be corroborative of evidence that it was subsequently committed, it would seem to follow logically that a prior attempt or threat to burn the same barn or to steal the same property, as for instance a particular horse, would be com-, petent even though Ownership had changed in the interim. So. here, I think, where it is quite clear that the purpose and plan Were directed not toward the individual hut toward the contract work, evidence of a prior attempt by the defendant to extort money either from the owner or from a former contractor so closely connected in time and similarity of circumstances as to indicate that the former wrongful demands and threat constituted a step in the preconceived plan and purpose which culminated in this crime, even though at the outset it could not have been known that Essig would be the contractor to be ultimately held up if the plan should not be successfully consummated sooner. His mind was upon this work and his plan and purpose was to unlawfully obtain some money from whoever' did it as a condition- of permitting it to be done by the members of his union. His previous threat was with respect to the same work, not remote in time from the threat to Essig, and the evidence indicates and warranted a finding that there wa,s no change in plan and purpose from the outset,, and" that there was á continuity of conduct on his part indicating a deliberate design and determination to unlawfully , obtain money as a-condition of permitting this work to be done, which he finally consummated by exacting it from Essig.. Within the authorities already < cited, and particularly within thel case of People v. Zucker (supra) where proof of the commission of another similar crime by the defendant was admitted and submitted to the jury as evidence corroborating the complaining witness, who was an accomplice, this evidence might have been properly considered by the jury as corroborating the testimony of Essig.

Hot withstanding the denial of guilt on the part'of the defendant • we are convinced by an examination of the testimony that the facts and circumstances proved clearly establish his guilt beyond a reasonable fioubt. We have examined the other exceptions and find no error which demands a reversal of the conviction or requires extended consideration. ,

By section 542 of- the Code of Criminal.Procedure the Legislaturn .lias commanded that “After hearing the appeal, the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” That command should not be lost sight of in any criminal case, and particularly in the case of a crime like this, which is a special menace to the public welfare. All controversies between capital and labor resulting in a strike injuriously affect more or less the entire community. They are sufficiently disastrous and deplorable when they res.ult from an honest difference of opinion between the employer and the employed; but when, as here, the strike is protracted long after all grievances have been adjusted, by an officer of a labor union who betrays his trust to the fellow-members of his ■union, and in effect deprives them of their rights to work until he has unlawfully extorted money from their employer for his own ends, the crime is intolerable from any point of view and should be speedily and severely punished.

It follows that the judgment should be-affirined,

Patterson, P. J., McLaughlin, Houghton and Scott, JJ. concurred.

Judgment affirmed. Order filed.

* Penal Code, tit. 15, chap. 5.— [Rep.

Case Details

Case Name: People v. Weinseimer

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Feb 15, 1907

Citation: 102 N.Y.S. 579

Court Abbreviation: N.Y. App. Div.