People ex rel. Perry v. Gillette

• Decision Date: 03 January 1911
• Citation: 200 N.Y. 275,93 N.E. 953
• Parties: PEOPLE ex rel. PERRY v. GILLETTE, Sheriff.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 275

93 N.E. 953

PEOPLE ex rel. PERRY

v.GILLETTE, Sheriff.

Court of Appeals of New York.

Jan. 3, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Habeas corpus proceeding by the People, on the relation of Charles Perry, against Willis K. Gillette, Sheriff. From an order of the Fourth Appellate Division (140 App. Div. 27,124 N. Y. Supp. 470) reversing an order discharging relator, he appeals. Reversed, and relator discharged.

1. THREATS (s 1*)-ATTEMPTS-ACTS CONSTITUTING.

Where an intended victim of extortion paid money in apparent pursuance of threats but really to entrap accused, the offense is an attempt to commit, and not consummated, extortion.

[Ed. Note.-For other cases, see Threats, Dec. Dig. s 1.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

2. THREATS (s 1*)-ATTEMPT-NATURE OF OFFENSE.

Penal Law (Consol. Laws, c. 40) ss 850-852, define extortion and make it punishable as a felony. Section 856 makes blackmail a felony. Section 551 makes sending threatening letters a misdemeanor. Section 857 makes it a misdemeanor to attempt to extort by verbal threats which would be criminal under any of the foregoing sections if made in writing. Held, that an unsuccessful attempt to extort money through verbal threats is a misdemeanor; section 857 not relating merely to such threats as if in writing would constitute blackmail under section 856.

[Ed. Note.-For other cases, see Threats, Dec. Dig. s 1.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Louis E. Fuller, for appellant.

Charles B. Bechtold, for respondent.

HISCOCK, J.

This appeal involves the question whether an unsuccessful attempt to extort money by means of verbal threats is a misdemeanor or a felony, and it arises upon the following facts undisputed here: The appellant and another attempted to extort money from one Stillson by means of verbal threats to accuse him of a crime and to inform others thereof. While the intended victim paid money in apparent pursuance of these threats, he did this really acting in concert with the police authorities for the purpose of entrapping the accused and his companion, and therefore the crime of extortion was not consummated, but the acts charged amounted to an attempt to commit such offense. People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741. The appellant was arrested and taken before the police justice of the city of Rochester and held awaiting examination. Pending this he was indicted by the grand jury and arrested by the respondent on a bench warrant. If his offense was a misdemeanor, he should have been tried in police court; if it was a felony, he was properly indicted and taken into custody by respondent, and this writ should be dismissed. The decision of the question involves the examination of several sections of the Penal Law.

Section 850, article 80, of the Penal Law (Consol. Laws, c. 40), defines ‘extortion’ as ‘the obtaining of property from another, with his consent, induced by a wrongful use of force or fear,’ etc. Section 851 provides that ‘Fear, such as will constitute extortion, may be induced by a threat: * * * (2) To accuse him (the individual threatened) or any relative of his or any member of his family, of any crime.’ Section 852 provides the punishment for extortion, and it is undisputed that the punishment therein prescribed is of such a character as makes the offense a felony. It is also beyond controversy that under the general provisions of the Penal Law, if unmodified by special provision, an attempt to commit the crime of extortion would also be a felony. Section 856 of the same article relates to blackmail, and provides that: ‘A person who, knowing the contents thereof, and with intent, by means thereof, to extort or gain any money or other property, or to do, abet, or procure any illegal or wrongful act, sends, delivers, or in any manner causes to be forwarded or received, or makes and parts with for the purpose that there may be sent or delivered, any letter or writing, threatening: (1) To accuse any person of a crime * * * is punishable by imprisonment for not more than fifteen years.’ Section 551, found in another article of said Penal Law, relates to sending threatening letters, and in substance makes the sending of such a letter by a person knowing its contents, threatening to do any unlawful injury to the person or property of another, etc., a misdemeanor. Section 857, found in the same article as the preceding sections except section 551, and entitled ‘Attempts to extort money or property by verbal threats,’ provides: ‘A person who, under circumstances not amounting to robbery, or an attempt at robbery, with intent to extort or gain any money or other property, verbally makes such a threat as would be criminal under any of the foregoing sections of this article or of section five hundred and fifty-one, if made or communicated in writing, is guilty of a misdemeanor.’

It is contended by appellant that under the section last quoted the general rule relating to attempts to commit crimes is modified, and that an attempt to commit extortion by mere verbal threats such as occurred in this case is made a misdemeanor. On the other hand, the respondent insists that said section simply relates to such threats to obtain property as if in writing would come under section 856 and constitute blackmail. I am unable to adopt the latter construction.

Said section 857 by its language specifically relates to an attempt to extort or gain money by such verbal threats as would be criminal if in writing under any of the preceding sections of the article of which it is a part. If the appellant and his companion had made in writing the threats which are said to have been made verbally with the intent of obtaining money, they would have been criminal under section 850 of said article as extended by the general provisions defining attempts to commit a crime, for, concededly,...