People v. Barondess

Barrett, J. 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 437 threat by word of month. Actual violence was there proved, also actual injury to the complainants’ furniture, goods, and fixtures; and the question whether the threat to continue the “boycott,” in the manner in which it had been conducted, amounted to a threat to continue the physical injury to the complainants’ furniture, goods, and fixtures was left to the jury. In the esse at bar the elements of violence, intimidation, and physical injury to tangible property are entirely wanting. The threats made were not threats of violence, nor was the attitude of the defendant or of his associates an attitude of physical intimidation. The utmost that can be claimed by the prosecution is that the defendant, as a leader, exercised sufficient influence over the complainants’ employes to keep them from resuming their employment until he was paid the sum finally agreed upon. He utilized that influence, and held it over the complainants to accomplish his purpose. The employes, whom he professed to represent, were equally free from violence or from an attitude of intimidation. Thus the threat, as already stated, was merely that the men would not work until the defendant was paid. Was that a threat to do an unlawful injury to the complainants’ property? The answer, in my judgment, must be in the negative. It certainly was not a threat to do injury to the material or to the other property in the complainants’ place of business. It was therefore simply a threat to injure their business or estate; in other words, to reduce their gains or to prevent their making gains. There can be no doubt that an injury to one’s business is an “injury to property” for the purposes of a civil action. Indeed, the Code of Civil Procedure (section 3343, subd. 10) defines an “injury to property” as an actionable act whereby the estate of another is lessened. But this definition is expressly limited to the construction of the Civil Code in which it is embodied, while it is conspicuously absent from the list of definitions given in the Penal Code. Pen. Code, § 718. It must be supposed that the legislature thus intended to eliminate mere actionable acts, whereby the estate of another is lessened, from the domain of criminal offenses, and to limit indictable wrongs to injuries done to personal property, as such property is defined in the Penal Code. Thus, a threat unlawfully to injure “goods, chattels, and effects,” or to deface or destroy “money, evidences of rights in action, or written instruments” of a particular description, would be a threat to do an unlawful injury to property, and would suffice to make out a case of extortion. This view is in harmony with the general purpose and intent of criminal jurisprudence, which deals mainly with what is materially evidenced. The opposite view would leave the question of guilt or innocence to be decided, not by the act of the accused alone, operating upon some tangible thing, but by evidence aliunde with respect to an intangible condition of affairs. If, for instance, property here means “business,” then what was the threat, and how was it to work an injury to the complainants’ business? It was, as we have seen, a threat to keep people from working for the complainants. Hot all people, but only the former employes of the complainants. Why should that necessarily work an injury to their business? Only by showing the urgen t present need of workmen, the inability to secure competent persons to fill the places of the former employes, the actual condition of the material required to be manufactured, the-extent of existing orders for manufactured goods, and a variety of other considerations going to make up the present status of the business. How, if the-complainants could supply the places of the former employes with better workmen at less w'ages, then the threat would be to benefit the business, not to-injure it. But even if the tendency of the act threatened might be to injure the business, how would that help the matter? The statute does not deal with tendencies or probabilities, much less possibilities. The threat must be-to do an unlawful injury to property, not to do something which may affect it injuriously, but which must injure it. If the prosecution is right, the-statute would operate upon “good-will” as well as upon reduced profits; in 438 fact, upon property invisible and non-objective, the very existence of which would have to be brought to light by independent evidence. This could not have been the intention of the statute. The corpus delicti is—First, the obtaining of the money or property; and, second, the threat to injure some specific thing by a direct physical attack upon the object of the threat. Property and person are placed in the same category, and the property contemplated is something that can be injured in the same way as “the person” can be injured. This injury, whether to person or property, must surely be direct. The prosecution, for example, cannot say that, although there was no threat to molest the complainant physically, or even to touch his person, yet the menace, if executed, might have affected his nerves, and thus injured his person. Consideration of the law as it existed prior to the Penal Code adds force to this construction. At common law, extortion signified any oppression by color of right; but technically it was defined to be the taking of money by an officer by reason of his office, where none at all was due, or not so much due, or when it was not yet due. Whart. Grim. Law, (3d Ed.) p. 833; 1 Hawk. P. C. c. 68, § 1; People v. Whaley, 6 Cow. 663. These rules as to the taking of unlawful fees were codified in the Revised Statutes. 2 Rev. St. (Edmond’s Ed.) pp. 669, 670, §§ 5-7; Id. pp. 778, 779, § 17. And we also find there a provision making a verbal or written threat to accuse another of any offense, with intent to extort property or money, a misdemeanor. 2 Rev. St. (Edmond’s Ed.) p. 712, § 2. The obtaining of money by force or feardoes not, therefore, seem to have been extortion, either at common law or under the Revised Statutes. It was robbery, at common law, to extort money under the threat of charging one with an unnatural crime, (Rex v. Jones, 1 Leach, 139; Rex v. Donnally, Id. 193; Rex v. Cannon, Russ. & R. 146;) and this view was taken of the provision of the Revised Statutes, defining robbery in the second degree, in People v. McDaniels, 1 Parker, Crim. R. 198, notwithstanding the specific legislation to which I have referred, making the threat of such an accusation with intent to extort money a misdemeanor. Under the Revised Statutes, the sending of a letter threatening 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 any money, etc., was declared to be an attempt to rob; and the fact that this offense was placed in the same class as that of robbery was emphasized in People v. Griffin, 2 Barb. 427. 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 439 bery which charged the talcing of property against the will of the complain, ants, by means of fear or injury to their property,—e. g., their business,— resulting from threats on the part of the robber or highwayman that he would use his influence with the complainants’ landlord not to extend their lease, or with the manufacturers not to sell them goods, or with the banks not to discount their paper. 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.