People v. Barondess

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 employees to absent themselves from work, is “ extortion,” as that offense is defined in the Penal Code, §§ 552, 553, subd. 1. I held, in the cases of The People v. Wilzig, Holdorf and Dannhauser, 4 N. Y. Crim., 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 threat by word of mouth. Actual violence was there proved, also actual injury to the complainant’s 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 h> continue the physical injury to the complainant’s furniture, goods; and fixtures was left to the jury.

In the case at bar the elements of violence, intimidation and;

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. Not all people, but the former employees of the complainants. Why should that necessarily work an injury to their business? Only by showing the urgent present need of workmen, the inability to secure competent persons to fill the places of the former employees, 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. Now,

If the prosecution is right, the statute would operate upon “ good-will ” as well as upon reduced profits; in 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 inj ured in the same way as “the person” can be injured.

This injury, whether to person or property, must surely be direct. The prosecution, par example, cannot sny 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. Wharton’s Criminal Law, 3d ed., 833 ; 1 Hawk P. C., ch.68, § 1; The People v. Whaley, 6 Cowen, 663.

These rules as to the taking of unlawful fees were codified in the Revised Statutes. 2 R. S., Edmond’s ed., 669, 670, §§ 5, 6 and 7; id., 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 R. S., Edm. ed., 712, § 2. The obtaining of money by force or fear •does not, therefore, seem to have been extortion either at common law or under the Revised Statutes. It was robbery at common Jaw 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, R. & R., 146.

And this view was taken of the provision of the Revised Statutes defining robbery in the second degree, in The People v. McDaniels, 1 Park. Cr., 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, 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 The People v. Griffin, 2 Barb., 427 .

Thei'e is another difficulty in the p3’esent case, and that is that the injury threatened must in itself be “unlawful.” Row, the-abstention from work on the 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. Penal 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-opei’ation for the purpose of obtaining-an advance in the rate of wages - is expressly excepted from the conspiracy sections. Penal Code, § 170.

This exception was further emphasized by an amendment to §• 675 of the Penal Code, which went into effect on the first 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.

Thus the law is unmistakable that so long as there is neither violence nor an attitude of intimidation nor interference with ■others, employees are free to work or to refrain from working, as they please; free individually and free in combination. The attitude of the complainants’ employees, 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 complaintants’ 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.

For these reasons the judgment and conviction should be re■versed and a new trial ordered.

The defendant was indicted for extorting from ■the firm of Popkin & Marks one hundred dollars by means of a -threat “ that he would do 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 ±he same.”

The crime of extortion is defined by § 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, that he is not guilty of extortion as defined by this act, and that •conceding the testimony offered on behalf of the People to be .true, the crime was not proven.

By § 553 of the Penal Code it is provided 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,” .and to support this judgment it must appear that the defendant •extorted from the firm of Popkin & Marks the one hundred dollars mentioned in the indictment by the wrongful use of fear induced hj a threat to do an unlawful injury to the property of such firm.

In construing this section of the Code we should give a reasonable construction to the language used, not a forced and unnatural construction extending the meaning of the words so as to include threats which a person of ordinary intelligence would not understand to be within the fair meaning of the language.

Popkin & Marks were cloak manufacturers in the city of Hew York. Their employees had left work in consequence of a dispute between themselves and the firm as to wages, and on the 9th of February an agreement was arrived at between the firm and their employees whereby the employees agreed to return to work on the following morning.

On that morning, however, they did not return to work, but the defendant came to the office of the firm accompanied by several of the firm’s employees and at that time he demanded the sum of $500, saying to Mr. Popkin : “You have got to pay me $500 to have your people back again to work.” Upon the refusal of Popkin to pay any sum, he reduced his demand to $300, saying: “If you do not give me $300 you cannot have your people back again to work; I will take $300 as long as I am here, and as-quick as I am going to leave this place it will cost you $500.”

That demand was refused and defendant left his place. In a few minutes Zipkin, one of his companions, returned and after-some consultation with Marks, one of the members of the firm, Marks said he would pay the defendant $100. Zipkin left and in a short time returned with defendant, who then said : “ I will take $100; I am doing that as a favor to Zipkin and instead of $300, if you want your people back I will take $100.”

A check was then drawn by the film to the order of the defendant and given to him, upon which he drew from the bank account of the firm the sum of $100, and this is the only evidence of any threat made by defendant to Popkin & Marks or to any one.

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

If one of Popkin & Marks’ employees, had refused to work for them, such a refusal, although it might have seriously affected their business, might have caused them serious loss, would not have been an unlawful inj ury to their business, because such an employee had the legal right to work for Popkin k Marks or not as he pleased, and if it was not unlawful for an employee to refuse to work it was not unlawful for a third party to advise or induce him to refuse to work, so that a threat of such third party that he would prevent such employee from working would not be .a threat to do an unlawful injury to the employer’s business.

Many illustrations might be given of instances where the exercise of "a legal right by one person would cause an injury to the property of another, and where there is no penalty or liability because of the exercise of such right.

The owner of a dwelling house could devote it to business purposes and thereby injure the value of adjoining property. Tet such use would not be an unlawful injury to the adjoining property, and a threat by the owner to make such use of his property would not be a threat to do an “unlawful injury” to property. It might be said to be a threat to do a “ lawful injury ” to the adjoining house, but such a threat is not sufficient to sustain a conviction for extortion, and it seems to me equally clear that a threat to induce the owner thereof to so use his house is not a threat to unlawfully injure property, because if it is not unlawful for the owner to use it for a particular use, it is not unlawful for a person to procure the owner to so use it.

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 Popkin k Marks had any unmanufactured goods on hand at the time of the occasion 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.

Popkin k 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 k 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 ir 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 Oode. The title treats of crimes against property, and includes arson, burglary and housebreaking, forgery and counter

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 liis 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.)—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 property,, that is to say, to injure and destroy their business and prevent and hinder them from carrying on the same. It appeared /by the evidence that these two persons were cloak manufacturers, employing a large number of persons in that business, and that in January, 1891, a strike took place, by which the persons in their own immediate neighborhood and those employed by contractors-with them refused to work until a more satisfactory arrangement, might be made for their compensation. While these persons-were on their strike the firm employed others to manufacture their garments, who were either non-union persons or else engaged in the employment in violation of the rules of their union. And efforts were made to arrange and agree upon terms which would be satisfactory to the individuals who were out upon the strike- and would induce them to resume their former employment. And in the course of these proceedings the defendant acted on behalf of the persons who were engaged or combined in the strike. He acted as their representative and was the manager of the Cloak-makers’ Union. With him, also, were associated other persons as a committee, who participated in the negotiations had with the-members of this firm of Popkin & Marks. A result was reached by which a scale of prices was agreed upon and assented to by the defendant on or about the 24th of January, 1891. But they proved to be unsatisfactory to the individuals engaged in the strike, and further negotiations continued to obtain more advan

The members of the firm assented to this condition, as well as the scale of prices, and discharged the persons from their employment who were not members of the union, or who as members had been engaged in their employment in violation of the rules or regulations of the order. But the persons who had been upon the strike did not return to the service of the firm. And evidence was given upon the trial of the indictment by Mr. Popkin to the .effect that he inquired of the defendant why it was that these persons had not resumed their employment, as that had been arranged between them and the members of the firm. And his evidence is that the defendant then informed him that the persons who had been upon the strike did not return to the employment of the firm for the reason that Popkin had not settled with the defendant. He stated then that he asked the defendant, “ What kind of a settlement have I got with you ? I don’t owe you any money.” And then the reply was: “You have got to pay me five hundred dollars to have your people back again to work. "* * * If yon want to have your people back again to work, you have got to pay me that amount of money.” “I told him I didn’t know what for. Finally he says to me, I will take three hundred dollars. I told him, I wouldn’t give you one cent, because I don’t know for what. He says, if you do not give me the three hundred dollars you can’t have your people back again to work.” And when this conclusion was reached and asserted, the defendant, together with one of the persons, named Zipkin, who was with him, left the store, and shortly afterwards Zipkin returned and said something about a settlement for $100. This statement was made to Mr. Marks, the other partner. And shortly after that the defendant returned to the store with Mr. Zipkin, .and then stated, “ I will take one hundred dollars. I am doing that as a favor to Zipkin, and instead of three hundred dollars, if you want your people back, I will take one hundred dollars." And thereupon a check was given to the defendant., subscribed by the firm, for the sum of $100, upon which the defendant received the money. The witness further testified that he believed at the time the check was paid to the defendant that the latter had the „ power to keep his men from returning to their work, and it was in that belief that he paid the money. The evidence given by Marks, the other partner, was not so full or complete as that obtained from the witness Popkin, but it still tended to corroborate the evidence of the latter. And so did that of the witness Berinen, who was the book-keeper of the firm. It was also stated that the defendant represented himself as having the control of these persons who previously had been in the service of the firm, and had agreed to return to that employment.

At the close of the case on the part of the People, a motion

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 had adjusted their differences as to a 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 busi

The statute does not require the narrow construction insisted upon by the defendant’s counsel. For it 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 so defined by subds. 9, 14 and 15 of § 718 of the Penal Code as to include the business itself and the loss insulting from its interruption. By the first of , these subdivisions it has been declared that, “The term ‘property’ includes both real and personal property, things in action, money, bank bills, and all articles of value.” And it has been further declared by subd. 15 of the same section that the term “personal property ” includes every description of money, goods, chattels, effects, evidences of rights in action, and all written instruments by which any pecuniary obligation, right or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged, or diminished, and every right and interest therein. And this is conformable to the significance given to the same term by legal writers. For it has been said by Blackstone that property consists in the free use, enjoyment and disposal of all the owner’s acquisitions, without any control or diminution save only by the laws of the land. 1 Blackstone’s Com., Sharswood’s Ed., 138.

And in Springfield Ins. Co. v. Allen, 43 N. Y., 389 , it was stated in the opinion of the court that “ Property is a thing owned, that to which a person has or may have a legal title.’’- Id, 395. And in all its attributes it has been brought within the protection of the constitution of both the nation and the state by the declaration that no person shall be deprived of property without due process of law. And that includes within this term a business which may be built up for the manufacture and sale of property, as well as the tangible articles themselves employed or used in the course of such business. There would obviously be no reason for so distinguishing the word “property,” as it has been used in these sections of the Code, as to apply it solely to tangible articles capable in and of themselves of receiving direct injury by the unlawful or wrongful act of another. The section has not employed the term in that manner, but it has included it in its broad and unrestricted sense, applying its prohibition to whatever may be properly maintained to be property. And the business of persons engaged in it is certainly, within the unrestricted significance of the term as it has been employed, as much a matter of property as any of the goods or garments manufactured or sold in the coqrse of such business. The defendant consequently was not entitled to the direction which was asked for in his favor, for the evidence did tend to establish the existence of an offense within the scope of this indictment.

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.

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 l'or 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 Mz\ Zipkin to the office and delivez-ed the money to the cashier." He also testified that he stated to Mr. Poplcin that he took the money to be distributed between the working people of Popkin & Marks ; that he obtained it at 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 npon his general intention in the control or management of the affairs of the unions.

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. Farther 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. Further testimony was also given to prove that the defendant had a good reputation among those who knew and had business intercourse with him. And from the proof, as it appears by the case, there was certainly sufficient, if the jury had credited the statements of the witnesses, to secure the defendant’s acquittal. But this court, not having the advantage of seeing the witnesses and listening to the statements and observing their manner as the jury did, cannot, on that account, assume that the verdict was not in accordance with the evidence. It will often occur that witnesses may unite in their evidence, as those did so on the part of the defendant, when the jury, from their conduct or appearance upon the stand, will fail to be impressed with the truthfulness of their statements. And the court, upon an appeal, where the evidence may be in that manner rejected, is not at.

On this subject it has been said that “When there is evidence oh both sides and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaption of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.” Baird v. Mayor, 96 N. Y., 567 , 577. And this principle requires the conclusion of the jury as it has been expressed by their verdict to be adopted and maintained by the court, unless the preponderance of evidence is so great as to indicate either a misunderstanding of the case, or the influence of prejudice, passion or corruption. The present case cannot be held to be of that description. It was, on the contrary, entirely proper for the consideration and the decision of the jury, and their verdict cannot be set aside as opposed to the weight of the evidence. The judgment, on the contrary, is fully supported by the case as it was presented on the part of the prosecution, notwithstanding the evidence produced in favor of the defendant, and it should be affirmed.

-Judgment reversed and new trial ordered.