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*Note: The following opinion was edited by AudioCaseFiles' staff.
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People v. Fichtner
281 A.D. 159, 118 N.Y.S.2d 392, aff'd without opinion, 305 N.Y. 864, 114 N.E.2d 212
New York Supreme Court, Appellate Division, Second Department, 1953

JOHNSTON, J.

Section 850 of the Penal Law provides: "Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of fear".

Section 851 of the Penal Law provides: "Fear, such as will constitute extortion, may be induced by an oral or written threat: To accuse him, or any relative of his or any member of his family, of any crime; or, to expose, or impute to him, or any of them, any disgrace.”

Defendant Fichtner is the manager, and defendant McGuinness the assistant manager, of the Hill Supermarket in Freeport, Nassau County. On January 30, 1951, an indictment was filed against both defendants, charging them in two counts with the crime of extortion in that on January 18, 1951, defendants, aiding and abetting each other, obtained $25 from one Smith, with his consent, which consent defendants induced by a wrongful use of fear by threatening to accuse Smith of the crime of petit larceny, and to expose and impute to him a disgrace unless Smith paid them $25.

Smith testified that on January 18, 1951, he purchased a number of articles in the Hill store for a total of about $12, but left the store without paying for a fifty-three-cent jar of coffee, which he had concealed in his pocket. After Smith left the store he returned at defendant Fichtner's request. Defendants then threatened to call a policeman, to arrest Smith for petit larceny, with resulting publicity in the newspapers and over the radio, unless he paid $75 and signed a paper admitting that during the course of several months he had unlawfully taken merchandise from the store in that amount. Although Smith admitted he had shopped in Hill's Freeport store about sixteen times and in Hill's Merrick store for about two years, he insisted that the only merchandise he had ever stolen was the fifty-three-cent jar of coffee on the evening in question, and a sixty-five-cent roll of bologna one week previously. However, he finally signed the paper admitting that he had unlawfully taken $50 worth of merchandise from the store during a period of four months. That evening Smith paid $25 in cash and promised to pay the balance in weekly installments of $5. He testified he was induced to sign the paper and make the payment because defendants threatened to accuse him of petit larceny and to expose him to the disgrace of the criminal charge and the resulting publicity. It is not disputed that the $25 taken from Smith was "rung up" on the store register; that the money went into the company funds and that defendants received no part of the money. During the following week Smith reported the incident to the police, and defendants were arrested on January 25, 1951, when Smith, accompanied by a detective, returned to the store and paid the first $5 installment.

Defendants testified that over the course of several weeks they saw Smith steal merchandise amounting to $5.61, and they honestly believed that during the several months that Smith had been shopping, he had stolen merchandise of the value of $75; that on January 18, 1951, Smith freely admitted that during the four-month period he stole merchandise of the value of $50, and that he voluntarily signed the paper admitting thefts in that amount; that on that date he paid $25 on account and promised to pay the balance in weekly installments.

That the Smith incident was not an isolated one, but rather part of a course of conduct pursued by defendants, even after warning by the police to discontinue the practice, was not only clearly established but admitted by defendant Fichtner.

In my opinion, the verdict is amply supported by the evidence. Implicit in the verdict is a finding that Smith stole only $1.18 in merchandise as he admitted, or at most the $5.61 which defendants claimed they actually saw him steal, and that he was induced to pay the $25 on January 18, 1951, by defendants' threats to accuse him of crime and to expose him to disgrace. By its verdict, the jury rejected defendants' contention that Smith voluntarily admitted having stolen $50 worth of merchandise and that they demanded from Smith only what was rightfully due.

Defendants requested the court to charge that "if in the judgment of the jury the defendants honestly believed that the amount which the complainant paid or agreed to pay represented the approximate amount of the merchandise which he or they had previously stolen from the Hill Supermarket, then the defendants must be acquitted."

The court refused the request "except as already charged". Although two members of the court are of the opinion that for the reason stated the trial court was justified in refusing to charge as requested, four members of the court are of the further opinion that the request was legally incorrect and, therefore, should have been refused. In other words, we believe that the portion of the main charge to the effect that, under the circumstances of this case, extortion is committed only when one obtains property from another by inducing fear in that other by threatening to accuse him of crime unless he pays an amount over and above what was rightfully due was more favorable to defendants than that which they were entitled to receive. In our opinion, the extortion statutes were intended to prevent the collection of money by the use of fear induced by means of threats to accuse a debtor of crime, and it makes no difference whether the debtor stole any goods, nor how much he stole, and that defendants may properly be convicted even though they believed that the complainant was guilty of the theft of their employer's goods in an amount either equal to or less, or greater than any sum of money obtained from the complainant. Nor is defendants' good faith in thus enforcing payment of the money alleged to be due to their employer a defense. It may not be held that the court erred in refusing the request to charge, which was legally erroneous, even though the request was substantially to the same effect as the main charge.

The law does not authorize the collection of just debts by threatening to accuse the debtor of crime, even though the complainant is in fact guilty of the crime. In my opinion, it makes no difference whether the indebtedness for which a defendant demands repayment is one arising out of the crime for the prosecution of which he threatens the complainant, or is entirely independent and having no connection with the crime which forms the basis of the accusation. The result in both cases is the concealment and compounding of a felony to the injury of the State. It is that result which the extortion statutes were intended to prevent.

The judgments should be affirmed and the appeal from "every intermediate order" and from the orders denying the motions to set aside the verdict should be dismissed.


WENZEL, J., Dissenting.

In my opinion this was error. As the result of the court's charge and refusal to charge the jury was permitted to convict defendants of the crime of extortion on proof that they had induced complainant, by the threats alleged, to pay to defendants more than he rightfully owed for goods which he had stolen, even though defendants might have honestly believed that the amount demanded from complainant was the amount which he rightfully owed. In my opinion, although the question is one as to which there is a conflict of authority, if defendants, acting without malice and in good faith, made an honest mistake, they were not guilty of the crime charged. There would then be no criminal intent. The defendants were not acting in their own behalf but in that of their employer, in recovering what they believed to be rightfully due it.

This case is in these books

• Criminal Law and Its Processes: Cases and Materials
• Kadish, Schulhofer
• 8th Edition