The People of the State of New York, Appellant, v. Charles W. Gardner, Respondent

The People of the State of New York, Appellant, v. Charles W. Gardner, Respondent. Under the provisions of the Penal Code defining the crime of extortion (§§ 552, 553), and that defining the offense of an attempt to commit a crime (§ 34), a person may be convicted of a,n attempt to commit the crime of extortion where another, from whom he sought to obtain money by a threat to accuse such other person of a crime, paid the money, but in so doing was not induced by fear, but was acting at the time as a decoy for the police. The offense of attempting to commit a crime as defined in the statute depends upon the mind and intent of the wrongdoer, not on the effect or result upon the person sought to be coerced, and he cannot protect himself by showing that, by reason of some fact unknown to him at the time of his criminal attempt, the crime attempted could not in the particular instance be perpetrated. Upon the trial of an indictment for an attempt to commit the crime of extortion, a witness called fer the purpose of identifying defendant as the individual in company with the prosecutrix upon an occasion having a material bearing on the case, testified that he did not know him, but would know him if he saw him. Thereupon defendant, by direction of the court and against the objection of his counsel, was compelled to stand up and was then identified by the witness. Held, that the direction was not error; that this was not a violation of the constitutional provisions protecting a person from being compelled in a criminal case to be a witness against himself. (U. S. Const, art. 5, amendment; N. Y. Const, art. 1, § 6.) iState v. Jacobs (5 Jones [N. C.], 359), distinguished and disapproved. It was proved by the prosecution that prior to the time of the alleged offense defendant was much in the company of A., the prosecutrix; that he visited her at her house and she visited him at his house, and that he frequently rode, visited saloons and drank wine with her. Defendant then offered testimony to show that in his relations with A. he was acting under the directions of the officers of the Society for the Prevention of Crime, whose agent he was. This testimony was objected to and excluded. Held, error. Reported below, 73 Hun, 66. (Argued November 27, 1894; decided December 11, 1894.) Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 8, 1893, which reversed a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York entered upon a verdict convicting defendant of an attempt to commit the crime of extortion. The nature of the action and the facts, so far as material, are stated in the opinion. Henry JB. B. Stapler for appellants. The evidence was amply sufficient to support the verdict of the jury finding the defendant guilty of the crime of an attempt at extortion, and the fact that the complainant, after having been at first terrified into yielding to his demands, had reported the matter to the public authorities, and in paying the money on the occasion in question acted under their directions with the purpose of securing his arrest, does not relieve him from criminal liability for the attempt to commit the crime, the commission of which was complete and perfect so far as he could make it so. (Penal Code, §§ 34, 552, 553; People v. Noelke, 94 N. Y. 142; 29 Hun, 466; Reg. v. Brown, L. R. [24 Q. B. Div.] 358; Reg. v. Ball, 1 C. & M. 249; People v. Stiles, 75 Cal. 570; Hamilton v. State, 36 Ind. 280; State v. Wilson, 30 Conn. 500; Kunkle v. State, 32 Ind. 220; Com. v. McDonald, 5 Cush. 365; Com. v. Jacobs, 9 Allen, 274; People v. Jones, 46 Mich. 441; State v. Beal, 37 Ohio St. 108; Clark v. State, 86 Tenn. 511; People v. Bush, 4 Hill, 133; People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Cr. Rep. 104; Mackesey v. People, 6 id. 114; Rogers v. Comm., 5 S. & R. 463; 2 Bishop’s Cr. Law [8th ed.], 488; Regina v. Hensler, 11 Cox Cr. Cas. 570; Reg. v. Francis, 12 id. 613; Reg. v. Jarman, 14 id. 112; Reg. v. Eagleton, Dearsly’s Cr. Cas. 515; Reg. v. Ball, 1 Carr. & Mar. 249; Reg. v. Roebuck, D. & B. Cr. Cas. 24.) That the complainant paid the money referred to in the indictment under the fear induced by the threats of the defendant, it is submitted, is shown by the evidence. (Penal Code, § 685.) There was no error in the exclusion of certain of the evidence as to the fact that instructions had been given the defendant by the Society for the Prevention of Crime. In any view of the matter such exclusion was not error as matter of law, since the fact sought to be proved was amply established by other uncontradicted evidence. (Kerrains v. People, 60 N. Y. 221; Shorter v. People, 2 id. 193; C. Bank v. Dearborn, 20 id. 246; Forrest v. Forrest, 25 id. 510; Smith v. Paton, 31 id. 66; State v. Ford, 3 Strob. 517; King v. Ball, R. & R. Cr. Cas. 132; King v. Tinkler, 1 East P. C. 384; Harford v. Wilson, 1 Taunt. 12; Doe v. Tyler, 6 Bing. 561; Rutzen v. Farr, 4 Ad. & El. 53; Nathan v. Buckley, 2 Moore, 153; Stiles v. Tilford, 10 Wend. 339; Page v. Ellsworth, 44 Barb. 640.) There was no error in the action of the trial justice in compelling the defendant to rise for the purpose of affording a witness, who had seen the defendant when in a standing position, an opportunity of determining whether she recognized the defendant as the person she had so seen. (State v. Graham, 74 N. C. 646; State v. Garrett, 71 id. 85; State v. Johnson, 67 id. 59; Rice v. Rice, 47 N. J. Eq. 560.) There was no error in the admission of testimony as to other transactions between the defendant and the complainant. (Kelley v. People, 55 N. Y. 571; Weed v. People, 56 id. 628; Hope v. People, 83 id. 418; Osborne v. People, 2 Park. Cr. Rep. 583; People v. Mead, 50 Mich. 228.) There was no error in the cross-examination of the defendant. (People v. Tice, 131 N. Y. 651; People ex rel. v. Oyer & Terminer, 83 id. 436, 470; People v. Brown, 72 id. 571; Ryan v. People, 79 id. 594; Connors v. People, 50 id. 240; Brandon v. People, 42 id. 265; Southworth v. Bennett, 58 id. 659.) There is no variance between the indictment and the proof. (Penal Code, §§ 34, 125, 552, 553; People v. Wightman, 104 N. Y. 598; State v. Duhammel, 2 Harr. 532; Bothwell v. Brown, 51 Ill. 234; Chandler v. Johnson, 39 Ga. 85.) The charge of the learned recorder was free from error. (People v. Dimick, 107 N. Y. 13; People v. McCallan, 103 id. 587; Schermerhorn v. Talman, 14 id. 93; Jackson v. Shaffer, 11 Johns. 513; Hartwell v. Root, 19 id. 346.) The record discloses no errors upon the trial of this defendant; an examination of the record shows that he had the benefit of every right given him by the law. (Code Crim. Pro. §§ 526, 542.) John W. Goff for respondent. Error* was committed by the trial court in its rulings admitting incompetent, immaterial and irrelevant testimony on the part of the prosecution. (People v. Brown, 72 N. Y. 571; Clarke v. State, 78 Ala. 474; Copperman v. People, 56 N. Y. 593; People v. Corbin, Id. 363; Coleman v. People, 55 id. 81; People v. Gibbs, 93 id. 470; People v. Sharp, 107 id. 427; People v. Greenwall, 108 id. 296; People v. White, 3 N. Y. C. R. 366; Hall v. People, 6 Park. Cr. Rep. 671; Dibble v. People, 4 id. 199; State v. Shuford, 69 N. C. 486; People ex rel. v. Justices, 10 Hun, 158; Wharton Am. Cr. Law, §§ 635, 647.) Eiror was committed by the trial court in its rulings excluding competent, material and relevant testimony on the part of the defense. (Kerrains v. People, 60 N. Y. 421; Donohue v. People, Id. 208; People v. Farrell, 31 Cal. 576; People v. Quick, 51 Mich. 547.) Error, was committed by the trial court in compelling the defendant, against his objections, to be stood up in court that a witness might identify him. (Counselman v. Hitchcock, 142 U. S. 547; Boyd v. U. S., 116 id. 635; Day v. State, 63 Ga. 669; Stokes v. State, 5 Baxt. 619; People v. Mead, 50 Mich. 228; State v. Garrett, 71 N. C. 85; State v. Jacobs, 5 Jones [N. C.], 259; State v. Johnson, 67 N. C. 55.) On the case established by the evidence the crime of attempt at extortion was not, and could not have been, committed. (Penal Code, § 125; Long v. State, 12 Ga. 293; People v. Whalley, 6 Cow. 662.) The trial court erred in its charge to the jury and in its refusals to requests to charge. (Code Civ. Pro. § 419; State v. Johnson, 12 Nev. 121; Greer v. State, 53 Ind. 421; Rafferty v. People, 72 Ill. 37; Brandon v. People, 42 N. Y. 265.) [MAJORITY — Eabl, J.] Eabl, J. The defendant was indicted and upon his trial convicted of an attempt to commit the crime of extortion in the city of 27ew York on the 4th day of December, 1892, by attempting to obtain $150 from Catharine Amos by threatening to accuse her of keeping a house of prostitution. The following are the sections of the Penal Code under which he was convicted: Section 552, “ 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;” sec. 553, “Fear, such as will constitute extortion, may be induced by a threat ” (among other things) “to accuse a person of any crime;” sec. 34, “An act done with intent to commit a crime, and tending, but failing, to effect its commission, is an attempt to commit that crime;” sec. 685, “A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.” Catharine Amos, who was the principal witness for the People, testified that for nine years she had been the keeper of a house of prostitution in the city of 27ew York, and that the defendant, in December, 1892, came to her and agreed with her that if she would pay certain sums of money to him, and especially the sum of $150, he would not accuse her of the crime, and that from October 19th, 1892, to December 4th, 1892, she had been acting as a decoy of the police and trying to induce the defendant to receive money from her under such circumstances as would render him guilty of a crime and enable the police to arrest and convict him of it. The evidence tended to show the existence of every element constituting the crime of extortion except that Mrs. Amos in paying the money exacted by the defendant was not actuated by fear. It is urged on behalf of the defendant that the fact that his threats did not inspire fear inducing any action on the part of Mrs. Amos, an element essential to constitute the completed crime of extortion, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion; and so a majority of the judges constituting the General Term held. We are of opinion that those learned judges fell into error. The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission, and, therefore, the act was plainly within the statute an attempt to commit the crime. The condition of Mrs. Amos’ mind was unknown to the defendant. If it had been such as he -supposed, the crime could have been and probably would have been consummated. His guilt was just as great as if he liad actually succeeded in his purpose. His wicked motive was the same, and he had brought himself fully and precisely within the letter and policy of the law. This crime as defined in the statute depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced. As said in People v. Moran (123 N. Y. 254), where the defendant was convicted of an attempt to commit the crime of larceny by thrusting his hand into the pocket of a woman which was not shown to contain anything, “ the question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. * * ■ * An attempt is made when an opportunity occurs and the intending perpetrator has done some act' tending to accomplish his purpose, although lie is baffled by an unexpected obstacle or condition.” In Commonwealth v. Jacobs (9 Allen, 274) the defendant was convicted of soliciting a person to leave the commonwealth for the purpose of enlisting in military service elsewhere, although such person was not fit to become a soldier, and there it was said: “ Whenever the law makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact Unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.” It is now the established law, both in England and in this country, that the crime of attempting to commit larceny may be committed, although there was no property to steal, and thus the full crime of larceny could not have been committed. (Reg. v. Brown, L. R. [24 Q. B. Div.] 357; Reg. v. Ring, 66 Law Times R. 300; Commonwealth v. McDonald, 5 Cush. 365; People v. Jones, 46 Mich. 441; State v. Wilson, 30 Conn. 500; Clark v. State, 86 Tenn. 511; State v. Beal, 37 Ohio St. 108; Rogers v. Commonwealth, 5 S. & R. 463; Hamilton v. State, 36 Ind. 280.) In Rex v. Holden (Russ. & Ry. 154) it was held on an indictment under a statute against passing or disposing of forged bank notes, with intent to defraud, that it was no defense that those to whom the notes were passed knew them to be forged, and, therefore, could not be defrauded. In Reg. v. Goodchild (2 Carr. & Kir. 293) and Reg. v. Goodall (2 Cox Cr. C. 41) it was held under a statute making it a felony to administer poison or use any instrument with intent to procure the miscarriage of. any woman, that the crime could be committed in a case where the woman was not pregnant. It has been held in several cases that there may be a conviction of an attempt to obtain property by false pretenses, although the person from whom the attempt was made knew at the time that the pretenses were false, and could not, therefore, be deceived. (Regina v. Hensler, 11 Cox Cr. C. 570; Reg. v. Banks, 12 id. 393; Reg. v. Francis, Id. 613; Reg. v. Ransford, 13 id. 9; Reg. v. Jarman, 14 id. 112; Reg. v. Eagleton, Dearsly’s Crown Cases, 515; Reg. v. Roebuck, D. & B. Cr. Cas. 24; Reg. v. Ball, 1 Carrington & Marshman, 249; People v. Stites, 75 Cal. 570; Hamilton v. State, 36 Ind. 280; People v. Bush, 4 Hill, 133; People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Cr. Cases, 104; Mackesey v. People, 6 id. 114.) And to the same effect are the text books on criminal law. (1 Bishop on Criminal Law, § 723, et seq.) So far as I can discover there is absolutely no authority upholding the contention of the learned counsel for the defendant, that because the defendant did not inspire fear in the mind of Mrs. Amos by his threats, and thus could not have been guilty of the completed crime of extortion, therefore, he cannot be convicted of attempting to commit the crime. That contention is, as I believe, also without any foundation in principle or reason. i Therefore, upon the facts alleged in the indictment and appearing upon the trial, the defendant could be convicted of an attempt to commit the crime of extortion, and the General Term, in reversing the judgment, should not, therefore, have refused to grant a new trial and have discharged the defendant. Our attention has been called on behalf of the defendant to many other exceptions taken by his counsel during the progress of the trial which, it is claimed, point out errors. We have examined all of them, but do not deem it important to call particular attention to but two. TIpon the trial it was proved that defendant and Mrs. Amos Were together upon certain occasions having a material bearing upon the case, and a witness was called to identify the defend~ant as the person who was in her company at one of the times and places referred to. The witness was asked: Do yon know Mr. Gardner ? ” Answer : • “ I do not.” Question: “ Would .you know him if you saw him ? ” Answer: “ Yes, sir.” Then the court directed the defendant to stand up. The defendant’s counsel objected to. his standing up, or that he should be compelled to stand up, or to testify against himself. The court replied : “ The prisoner will rise; stand him up.” And then, against the objection of his counsel, the defendant was forcibly compelled to stand up, and then he was identified by the witness. It is now claimed on his behalf that this action on the part of the court violated his constitutional rights by compelling him to be a witness against himself. (N. Y. Constitution, art. 1, sec. 6 ; U. S. Constitution, amendment 5.) We do not think that the defendant’s constitutional right was violated, or that he was compelled, within the meaning of the constitutional provisions referred to, to give evidence against himself. He was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him, and he had the right to see them. It was necessary that he should be identified as the person named in the indictment and charged with the crime. His mere standing up did not identify him with the alleged crime, and did not disclose any act connected with the crime. There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he had come into court with his face veiled, could not the recorder compel him to remove the veil that his face might be seen ? Gould he not compel him to remove his hat; to stand or sit in the prisoners’ dock ? In the examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos? Instead of compelling the defendant to stand up, could not the recorder have directed the witness to go to the place where he was and look at him with the view of identifying him ? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right' was invaded by compelling him to stand up for the purpose of identification? For the orderly conduct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court room, and whether at any time he shall stand or sit, and be covered or uncovered; and he must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses. The history of the constitutional provision referred to clearly demonstrates that it was not intended to reach a case like this. (Story’s Con. Lim. § 1788; 1 Steph. Hist. Cr. L. 440.) The main purpose of the provision was to prohibit the compulsory oral examination of prisoners before trial, or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in mime. It could reach further only in exceptional and peculiar cases coming within the spirit and purpose of the inhibition. A murderer may be forcibly taken before his dying victim for identification, and the dying declarations of his victim may then be proved upon his trial for his identification. A thief may be forcibly examined and the stolen property may be taken from his person and brought into court for his condemnation. A prisoner’s person may be examined for marks and bruises, and then they may be proved upon his trial to establish his guilt; and it would be stretching the constitutional inhibition too far to-make it cover such cases and cases like this, and the inhibition thus applied would greatly embarrass the administration of justice. In Rice v. Rice (47 N. J. Eq. R. 559) Beasley, C. J., said : “ That every court of judicature, as an indispensable-attribute, is possessed of the power to require every person-who is present as a party, or who is a witness under examination, to disclose his or her face to the court or to the jury, if there be one, would not seem in any degree questionable. Without such exposure there would -be no certainty who the person really was who assumed to act as party or witness. To order such persons to expose their faces' to view is common-usage in every court, and thus far the practice seems not to bel open to any question.” Our attention is called to authorities bearing more or less upon the question we are now considering, and we And that they are not all harmonious. In State v. Jacobs (5 Jones [N. C.], 259) it was held that a judge has no right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling them to determine his status as a free negro. There the defendant was indicted as a free negro for carrying arms, and it became necessary for the prosecution to show that he was a negro, and in that state a man was held to be a negro who had as much as one-sixteenth part of African blood in his veins. There the defendant was compelled to stand up that the jury might see whether he was a negro or not, and to determine that fact from their own observation. Thus there was a sense in which it could he said that the defendant was compelled to furnish evidence against himself upon a vital issue to be tried, and so that case is distinguishable from this. But no authority was cited to uphold that decision, and we entertain no doubt that it was erroneous. The judge writing the opinion said: “ Admitting that the state has a right to compel his presence at the trial, it does not follow that he is bound to stand or sit within view of the jury.” Can this observation be correct? Certainly, in this state it cannot be maintained that a prisoner, when on trial, could not be compelled to stand or sit in view of the jury. It is the right of the prisoner to be in the presence and view of the jury, and it is the right of the prosecution to have him in the view of the presiding judge and jury and the counsel engaged in the trial. And whether at any particular time he shall stand up or sit down in the presence of the jury must be a matter resting in the discretion of the trial judge, and in no sense can it be said that by the exercise of such discretion his constitutional right is involved. ' ' In the case of the State v. Johnson (67 N. C. 55) the defendant was' on trial for rape, and On the 'trial the prosecutrix was asked by the prosecuting attorney to look around the court room and see if she could identify the guilty party, and she pointed to the prisoner and said, “That is the black rascal.” It was insisted that this was to make the prisoner furnish evidence against himself; that he had the right to be there and confront his accusers, and that for the state to take advantage of his presence to have him pointed out and identified placed him in the dilemma of either abandoning his constitutional right to be present or of affording the means of his conviction by its exercise. The court held against this contention, and that no error was committed. Suppose in that case the court had placed the prisoner where he would have been conspicuously in view of the court, the jury and the witnesses, and the prosecutrix had then identified him, would his constitutional right have been invaded ? And if he had been compelled to stand up would he have been compelled within the meaning of the Constitution, to give evidence against himself % We think not. We are, therefore, of opinion that no error was committed in the case in compelling the defendant to stand up for identification. It appeared upon the trial by the witnesses for the prosecution, that prior to the time of the alleged offense the defendant was much in the company of Mrs. Amos ; that he visited her at her house; that she visited him at his house; that he frequently rode with her through the streets of Hew York, and visited saloons and drank wine with her. These facts were proved on the part of the prosecution to show his relations with Mrs. Amos and his motives, and as links in the chain showing the commission of the alleged crime. The defendant offered to show by himself and other witnesses that in his relations with Mrs. Amos he was acting under the directions of officers of the Society for the Prevention of Crime, for the purpose of gaining her confidence and good will, and securing from her an affidavit which could be used for the arrest of a former agent of that society who was supposed to be engaged in extorting money from keepers of houses of prostitution by threats of prosecution, and the recorder excluded the evidence. It is now claimed that in such exclusion error was committed. We think the evidence should have been received. The defendant should have been permitted to prove that he acted under the general instructions of the Society for the Prevention of Grime whose agent he was, and that he reported his acts to its officers and followed their directions. Such proof would have had a tendency to put an innocent aspect upon his acts which would otherwise seem to bé a part of the scheme to commit the crime with which he was charged. It is claimed on behalf of the People that the exclusion of this evidence was not harmful to the defendant as the facts were nevertheless proved. We have carefully read all the evidence, and we are not satisfied that the defendant did not suffer harm from the rulings complained of. The recorder had laid down the law by these rulings, and the defendant did not have the benefit of the evidence offered in the submission of the case to the jury. The case went to the jury with the rulings of the recorder during the progress of the trial that that kind of evidence was incompetent and illegal. Other things transpired during the progress of the trial to which our attention has been called, which, though not presenting legal errors which would call for a reversal of the judgment of conviction, were yet of such a character that they may have been harmful and probably were harmful to the defendant. We will not comment upon them, as they may not, and probably will not, appear upon another trial. On account of the error above pointed out, while the General Term should have reversed the judgment below, it should also have granted a new trial. Our conclusion, therefore, is that the order of the General Term should be so modified as simply to reverse the judgment of conviction and to grant a new trial. All concur. Ordered accordingly.