she would consent to have connection with him, and neither case presented the question of a promise conditional upon pregnancy. The distinction between the two promises is apparent. In the case of a promise conditional upon immediate intercourse, the condition is performed at the moment of the sexual act, and the promise to marry becomes absolute at once. Seduction in such

a case is clearly accomplished under a promise to marry. In the case of a promise conditional upon pregnancy, there is no absolute promise at the time of the intercourse, and the condition is such that there may never be any. It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur. To bring a case within the statute, the promise of marriage must be the inducement to, and must exist at the time of, the act of sexual intercourse. The case of People v. Hustis has no support in the authorities cited to sustain it, and should be overruled. The exception referred to was well taken, and the judgment must be reversed, and there must be a new trial.

All concur.

Court of Appeals.

December 11, 1894.

PEOPLE v. CHARLES W. GARDNER.

(63 St. Rep. 21; 144 N. Y. 119, modifying and affirming 9 N. Y. Cr. 124.)

1. EXTORTION-ATTEMPT TO COMMIT.

Where a threat is made with intent to commit the crime of extortion, and tends, but fails, to effect its commission, it is plainly, within the statute, an attempt to commit the crime.

2. SAME.

Such crime depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced.

3. SAME

The accused 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.

4. TRIAL-IDENTIFICATION-CRIMINAL CASES.

It is not error, in a crminal case, for the court to compel the defendant to stand up for identification.

5. EVIDENCE-EXTORTION.

On the trial of an indictment for an attempt to commit the crime of extortion, the defendant may, in order to show the reason for his intimacy, and rides with and visits to and with the prosecutrix, which were established by the prosecution, prove that he acted, in so doing, under the general instructions of the Society for the Prevention of Crime, whose agent he was, and that he reported his acts to its officers and followed their directions.

Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which reversed a judgment of the court of general sessions of the peace in and for the city and county of New York, entered upon a verdict convicting defendant of an attempt to commit the crime of extortion.

Henry B. B. Stapler, for appellant.

John W. Goff, for respondent.

EARL, J.-The defendant was indicted and upon his trial convicted of an attempt to commit the crime of extortion in the city of New 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: Sec. 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;" § 553, "Fear, such as wiii constitute extortion, may be induced by a threat" (among other things) "to accuse a person of any crime;" § 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;" § 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 Peo

ple, testified that for nine years she had been the keeper of a house of prostitution in the city of New York, and that the de fendant, 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 19, 1892, to December 4, 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 nitent 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 condi tion 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 had 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 in tent of the wrongdoer, and not on the effect or result upon the person sought to be coerced. As said in People v. Moran, 12 N. Y. 254; 33 St. Rep. 397, 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 consummation of his design. An attempt is made when an opportunity occurs and the intending perpetrator had some act tending to accomplish his purpose, although he 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, 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, 24 Q. B. Div., L. R. 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. Cas. 570; Reg. v. Banks, 12 id. 393; Reg. v. Francis, id. 613; Reg. v. Rainford, 13 id. 9; Reg. v. Jarman, 14 id. 112; Reg. v. Eagleton, Dearsly's Cr. Cas. 515; Reg. v. Roebuck, id. 24; Reg. v. Ball, 1 Carrington & Marshman, 249; People v. Stiles, 75 Cal. 570; Hamilton v. State, 36 Ind. 280; People v. Bush, 4 Hill, 133; People v. Lawton, 56 Barb. 126; MeDermott v. People, 5 Park. Cr. Cas. 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.

Therefore, upon the facts alleged in the indictment and ap pearing 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.

Upon 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 defendant as the person who was in her company at one of the times and places referred to. The witness was asked: "Do you 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 com pelled 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