People v. Fichtner

305 N.Y. 864, 114 N.E. 2d 212 (1952)

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Nature of the Case

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Facts

Fichtner (D) and McGuinness (D) were managers at the Hill Supermarket. Smith purchased a number of articles in the 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. Smith left the store but returned at D's request. Ds 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. Smith insisted that the only merchandise he had ever stolen was the fifty-three-cent jar of coffee and a sixty-five-cent roll of bologna one week previously. 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. D claims he was induced to sign the paper and make the payment because Ds 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. Ds received no part of the money. Smith reported the incident to the police, and Ds were arrested on January 25, 1951, when Smith, accompanied by a detective, returned to the store and paid the first $5 installment. Ds were indicted for extortion and 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. Smith 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. The Smith incident was not an isolated one, but rather part of a course of conduct pursued by Ds, even after warning by the police to discontinue the practice. Another witness testified that she paid defendants $25 after they threatened to accuse her husband of stealing a thirty-one-cent bottle of cherries. A second witness testified that she paid defendants $50 after they threatened to accuse her of stealing $1 in merchandise. A third witness testified that she paid defendants $50 after they threatened to accuse her of stealing a sixty-five-cent can of crabmeat. A fourth witness testified that she paid defendants $5 after they threatened to accuse her of stealing a seventy-five cent item. A fifth witness testified that she paid Ds $15 after they threatened to accuse her of stealing meat of the worth of $1. In addition to the oral testimony of these five witnesses, their signed statements, similar to that signed by complainant, were received in evidence. Also received in evidence were twenty-two other such statements, in which various persons (who did not appear at the trial) admitted the theft of merchandise - six for $50; one for $25; four for $10; one for $5; five for sums ranging from $2.36 to $.37, which five were for unstated amounts. D admitted he had been warned by a police officer, to whom a customer had complained, that the practice of compelling a shoplifter to sign a form and demanding money was something that could be termed extortion, and if there were any shoplifting, he should call the police because that is what courts are for. D also testified he called up the company lawyer, who assured him of the legality of the use of the forms and that, as long as no threats were made and the people signed and agreed to make restitution, what he was doing was perfectly legal.

Ds 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. Ds were found guilty on both counts. They appealed.