New York, Lake Erie & Western R. Co. v. National Steamship Co.-People v. Hughes. upwards, not a single instance is shown where payment has been demanded or expected before the goods were put upon the vessel, or where payment has been made unless they were actually on board the ship. It is claimed by plaintiff's counsel that the Inman line of steamers paid the advance charges upon some bales of cotton lying upon their pier, which were destroyed by fire at the same time with the cotton upon defendant's pier, but the evidence does not sustain the claim. The cotton upon the Inman pier was only damaged, and not destroyed. A survey was called for, and the cotton sold for the account of whom it might concern, and some $400 realized. The insurance company which had paid the loss to the owners, ascertaining that this money was in the hands of the agents of the Inman line, made claim to it, and it was paid over to them without any deduction for the freight charges, which amounted to $62. Subsequently the railroad company notified the Inman line that the back charges had not been paid, and the Inman company notified the insurance company, which refunded the *29] amount, and it was *paid over to the railroad company. The transaction cannot be construed as a recognition by the steamship company of a liability to pay the back charges while the goods were lying upon the pier, but rather to the contrary. It seemed to indicate that it was the understanding of all the parties that the charges were a lien upon the goods, which must first be paid out of the proceeds of their sale, and that the lien of the railroad company was not lost by the delivery of the goods to the steamship company upon the pier, but continued until the charges had been actually paid. As the contract for shipment was entire, each carrier had a lien upon the goods for his unpaid freight until they were delivered to the consignee, and the possession of any carrier engaged in the joint enterprise would be deemed the possession of any other carrier whose proportion of the freight charges had not been paid, so far as might be required to support the lien therefor. We think the case was properly disposed of at the Circuit, and that the judgment and order should be affirmed, with costs. All concur. Judgment affirmed. PEOPLE v. HUGHES. (Aff'g 46 N. Y. S. R. 413.) Extortion-felony-challenge of juror-rea sonable doubt. One who threatens that unless his demand for money is complied with. he will, by the hostility of a trade union of which he is an officer, compel retail dealers to withdraw their custom from a manufacturer to whom the threat is made, and who has the power so to do, although the original occasion for its exercise is gone, is guilty of threatening to do an unlawful Injury to property within the New York statute against extortion, although influencing one's friends and the public not to deal with a firm, because of the conviction that it does not give honest compensation for labor, is not unlawful, even if it produces an injury to business. The crime of extortion, being punishable by imprisonment for a term not exceeding five years, is a felony within N. Y. Pen. Code, $$ by death or imprisonment in the State prison, 702-704, defining a felony as a crime punishable and providing that when the term is less than one year the person shall be confined in the county jail, when it is one year, in the county it exceeds one year, in the State prison. Jail, penitentiary, or State prison, and where An order that the judgment of conviction appealed from be affirmed, and all proceedings Terminer, operates to restore the authority of be, and are, remitted to the Court of Oyer and the latter court to impose sentence. A conviction will not be reversed because the record does not show that any judgment of conviction was entered, since if the point is correctly taken the appeal should be dismissed. A conviction will not be reversed because after the exhaustion of defendant's peremptory challenges the people were allowed peremptorily to challenge a juror who had been sworn, where the objection made was not that he could not Y. Code Crim. Proc. § 371, providing that the be so challenged after being sworn, under N. court may in its discretion, for good cause, set aside a Juror at any time before evidence is given, but on the ground that he could not be so challenged except in the discretion of the court, and that such discretion could not be exercised unless some cause other than the oral statement of counsel was shown. A "reasonable doubt" cannot be said to exist when the jury are so firmly convinced of the facts necessary to establish the prisoner's guilt that, if it was a very grave and serious matter affecting their own affairs, they would not hesitate to act upon such conviction. A Term of the Supreme Court in the fifth judicial department, entered upon an order made June 23, 1892, which affirmed a judg ment convicting defendant of the crime of extortion entered upon a verdict of the Court of Oyer and Terminer of Monroe County. The facts, so far as material, are stated in the opinion. PPEAL from judgment of the General John Van Voorhis, for appellant: No appeal will lie until not only sentence is pronounced and judgment entered, but a judg ment roll is filed. This return does not contain pr. 485; People v. Calihan, 29 Hun, 580; the judgment or the judgment roll. Code Crim. Sherry v. Fredericks, 13 N. Y. S. R. 23; People v. Bradner, 107 N. Y. 1. The case was never remitted by the Su- [*31 preme Court to the Oyer and Terminer, and the judgment entered upon the supposed decision of the General Term was unauthorized and void. Code Civ. Pro. §§ 2-27, 235; Code Crim. Pro. §§ 547, 548, 582. The verdict convicts the defendant of "the There felony as charged in the Indictment." is no charge of any felony in the indictment. It is a simple indictment for extortion. 2 R. S. 651, 7: People v. Whaley. 6 Cow. 661; Penal Code, 554; People v. Lyon, 3 N. Y. Cr. Rep. 160. It was error to set aside the juror, William Rosenbauer, after he had been challenged, the challenge tried and overruled by the court, and the juror had been sworn, and had taken his seat in the jury box as a juror In the cause. People v. Carpenter, 102 N. Y. 238; Hildreth v. City of Troy. 101 id. 234; Code Civ. Pro. 8 1180: Code Crim. Pro. § 455; People v. Beckwith, 103 N. Y. 360. There is no evidence in the case to sustain the verdict of the jury. The case should never People v. Hughes. have been submitted to the jury, and the defendant should have been acquitted by direction of the court. Penal Code, §§ 171, 552, 553, 675; People v. Everest, 51' Hun, 19; Carew v. Rutherford, 106 Mass. 1; Snow v. Wheeler, 113 ld. 179; Bowen v. Mathewson, 14 Allen, 499. The defendant's exceptions to the charge of show that any judgment of conviction was entered in the Oyer and Terminer. The point is suicidal. If correctly taken we ought to dismiss the prisoner's appeal. His counsel put themselves in the attitude of go the court on the subject of reasonable doubting to the General Term, and then coming are well taken. Code Crim. Pro. § 389; People v. McCann, 16 N. Y. 58; O'Connell v. People, 87 id. 377 Brotherson v. People, 75 1d. 159; It was error for the court to charge that there was no dispute as to the question of wages. Penal Code, §§ 170, 675. Stokes v. People, 53 id. 164. The court, in effect, charged the jury that the defendant was required to produce witnesses to the people to make out their case. This was erroneous. Code Crim. Pro. § 393; People v. Skinner, 5 N. Y. Cr. Rep. 1. William F. Cogswell, for respondent: The decision of the court upon the trial of the challenge for actual bias is the decision of a question of fact, and no exception lies to such decision save in the single case that there is 32] no evidence to support it. People v. McQuade, 110 N. Y. 284; Code Crim. Pro. §§ 376, 455. The challenge to Juror Moran was properly overruled. People v. Buddensieck, 103 N. 487 People v. Crowley. 102 id. 234. The court properly allowed the counsel for the people to exercise his right of challenge to Juror Rosenbauer and the furor was properly excluded. Lewis v. N. Y. & L. E. R. Co.. 123 N. Y. 496: People v. Rogers. 13 Abb. (N. S.) 371: People v. Damon. 13 Wend. 351; United States v. Morris, 1 Curtis, C. C. 23. The defendant was indicted for and properly convicted of extortion. Penal Code. §§ 168, 552. 553; Seymour v. Wilson. 14 N. Y. 561; Smith v. Countryman, 30 id. 655. No error can be predicated upon the charge or the refusals to charge. State v. Burnham. 15 N. H. 396; Commonwealth v. Miflin. 5 W. & S. 461: People v. McWhorter, 4 Barb. 438: Gearing v. State, 1 McC. 573; People v. Way man, 128 N. Y. 583; Miles v. U. S., 13 U. S. 309. Finch, J. The prisoner was convicted of extortion. The verdict of the jury establishes that, availing himself of his position as the head of a labor organization, with branches in almost all sections of the country, he first threatened and then put into operation a scheme for lessening and damaging, and to some extent destroying, the business of a firm of clothing manufacturers, because they did not at once obey his commands in respect to the number of annrentices they should employ, and, when they submitted to his dictation and apologized for seeking to do their own business in their own way instead of his. extorted money from the firm as the price of forgiveness. Setting in motion the enormous power which the organization, evidently misjudging the man, had suffered to fall into his hands, he extorted from the firm something over a thousand dollars as the price of ending the mischief. He called this process "soaking" the manufacturers. The jury pronounced it extortion, and he was convicted of that crime, and now appeals from the judgment. Be fore us, several alleged errors in the trial are asserted as grounds of reversal, some quite *33] *technical, but others material to the result, and deserving serious consideration. 1. It is objected that the record does not here on appeal to reverse a judgment which they at the same time assert never had a legal existence. The minutes of the Oyer and Terminer show the verdict and the rendition of a judgment upon it. We may very well assume the fact of its formal entry from the statement contained in the affidavit of the district attorney on the motion to remit the record to the court below, and from the recitals in the notices of appeal served by the prisoner's counsel, which describe a judg ment of conviction in the Oyer and Terminer. The appellant can hardly complain if we do not turn him out of court on his own objection that his appeal is premature. 2. It is asserted that the judgment of the General Term was never remitted to the Oyer and Terminer after affirmance. The record shows that it was. Upon the formal motion of the district attorney, founded upon an affidavit which recited the prior proceedings, the General Term ordered that the judgment of conviction appealed from be affirmed, "and all proceedings herein be, and the same hereby are, remitted to the Court of Oyer and Terminer." The order operated to restore the authority of the latter court, which thereafter directed the sentence to be carried out. 3. The third objection is that the verdict convicts the defendant of the felony charged in the indictment, and that no felony was charged in the indictment because extortion is not a felony. That is a mistake. Whatever may have been the rule at common law. extortion is a felony under the definition of the Penal Code. That definition describes a felony as a crime "punishable" by death or imprisonment in the State prison. By section 702, where the penalty is imprisonment for less than one year the prisoner goes to the county jail. By section 703, when the term is one year he may be confined [*34 in the county jail, penitentiary, or State prison. By section 704, where the term exceeds one year he must go to the State prison. Now, by section 554 the crime of extortion is punishable by imprisonment for a term not exceeding five years. Obviously the of fense is "punishable;" that is, may be punished by an imprisonment of one year or more, which may be or must be in the State prison. It is not the actual sentence, but the possible one, which determines the grade of the offense. People v. Borges, 6 Abb. Pr. R. 132. 4. The next objection is much more serious, and relates to the ultimate constitution of the jury. William Rosenbauer. summoned as a juryman, was challenged for aetual and implied bias, and examined by both parties. Nothing appeared to justify his rejection, and the challenge was overruled, the juror sworn and took his seat in the jury People v. Hughes. "A challenge must be taken when the juror appears and before he is sworn; but the court may in its discretion, for good cause, set aside a juror at any time before evidence is given in the action." What constitutes the "good cause" *referred to is dic-[*36 tated by succeeding sections. Sections 375, 376, 377. The obvious meaning of section box, being the eleventh juror selected. Four acquired are seeking so to transform their acothers were then examined and rejected, and tual objection as to throw the mistake which the challenge of the fifth was overruled by they made upon the court, which did not the court, whereupon the defendant chal- make it. The basis of the effort is that their lenged him peremptorily, and in so doing ex-objection was founded upon and covered by hausted the last of his five peremptory chal-section 371 of the Code of Criminal Procedlenges. At this stage of the proceedings ure. That section reads: counsel for the people stated that he desired to interpose a peremptory challenge to one of the jurors who had been sworn and passed into the box, stating as a reason that matters had come to his knowledge since the juror was sworn, leading him to believe that the juror was not satisfactory. Counsel for the defendant objected upon the ground that after a juror has been sworn he cannot be chal-371 is that a challenge for "good cause," lenged peremptorily except by permission of which is required to be taken before the the court and in the discretion of the court, juror is sworn, may nevertheless be taken and that that discretion ought not to be ex- thereafter and before evidence is given, in ercised, and cannot be exercised, unless some the discretion of the court. If it does not case is made other than the oral statement mean that, it must necessarily mean that the of counsel; it cannot be exercised upon the court may for any good reason, even though bare statement that counsel has learned undisclosed, set aside the sworn juror in its something, without stating what he has discretion. I do not think that is its meanlearned. Counsel also objected that the re- ing or purpose. If it is, there was no sound quest was not made until after the defend-objection possible for the prisoner's counsel ant had exhausted his peremptory chal- to take. I prefer the other construction, lenges. The court granted the request of the which they evidently adopt. Now it is quite prosecuting attorney, who thereupon chal- certain that neither party had any reference *35] lenged Rosenbauer *peremptorily, and to a challenge "for good cause" under section the juror left the box. The defendant's 371. The prosecutor did not ask that. The counsel excepted to the ruling. The record specific request was to interpose a perempmakes it very plain what the objection and tory challenge. That is defined in section what the ruling were, and so what the ex-372 as "an objection to a juror for which no ception relied on is. The counsel for the reason need be given, but upon which the prisoner did not object that the juror could court must exclude him." There is no quesnot be challenged peremptorily after having tion of good cause about that, and cannot be. been sworn, but conceded the exact contrary, It was that request, permission to exclude a and admitted that he might be so challenged juror peremptorily and without assigning in the discretion of the court, and, admit- any reason, as if he had not yet been sworn, ting and conceding that, aimed his objection which was made; it was that permission at the manner of exercising the discretion; and which the prisoner's counsel explicitly conhis sole and distinct point was that the con- ceded lay in the discretion of the court, but ceded discretion could not be exercised upon which they objected should not be exercised the bare statement of the prosecuting attor- upon the bare statement of the prosecutor ney and after the defendant had exhausted that he had learned disqualifying facts, withhis peremptory challenges. It was upon out stating what they were. It was not that objection that the court ruled, and upon even said that they should be publicly stated, that only, and the ruling was that, the dis- but the contention was that an admitted discretion of the court being conceded, it was cretion to permit a peremptory challenge a proper exercise of that discretion to act ought not to be exercised upon the bare asupon the assurance of the public officer em- surance of the district attorney that he had powered by the law to represent the people undisclosed disqualifying facts, and after in the prosecution of criminals. There was the prisoner had exhausted his peremptory no error in the ruling. Assuming the truth challenges. Of course, since there was no of the concession that the court had discre- abuse of the discretion conceded, the excep tion to permit a peremptory challenge of a tion to its exercise is unavailable on this apjuror after he had been sworn, it was no peal. The objection itself respected merely abuse of that discretion to give the permis- the order of the proceeding. The prosecusion upon the assurance of the prosecuting tion had not exhausted their peremptory officer. Just that appears to have been done challenges. They might have excluded the in Tweed's Case before the Code of Criminal juror before he was sworn; they were perProcedure came into operation (13 Abb. Pr. mitted to exclude him after he was sworn. R. N. S. 371, note), and it is not very won- The order of the challenge was probably maderful that the prisoner's counsel should terial to the rights of the prisoner, but no have thought the rule unchanged, and so objection or exception was taken on [*37 conceded its existence. They made a mis- that ground. To hold otherwise would be take. They had a good objection, but did to stray from the uniform rule that an obnot know it, and with the later informationjection must be sufficient to fairly call the People v. Hughes. attention of the court to the precise point to be decided, must be specific, and must not be ambiguous or misleading. It must not appear to be one thing when in truth it is another. It must not hide under a deceptive mask concealed and unknown features. Fairness towards the prisoner does not require unfairness to the trial court, and we cannot here, to reverse a judgment, put upon that court a ruling which it was not asked to make and did not make. 5. The next ground of the appellant's argument is that there was no evidence to sustain the indictment, and the prisoner should have been acquitted by direction of the court. The argument is directed to the point that what the prisoner threatened and did was not an unlawful act, and so no threat of an "unlawful injury to property" was proved, which is a necessary element in the crime charged. More in detail, the contention is that Hughes might lawfully refuse to buy goods of Adler & Bros., and might lawfully persuade his friends to do the same thing, and that no more than that is proved against him. That is the innocent form of what in the conversation between Hughes and the manufacturers was denominated a "boycott." We must not misunderstand the real question to be determined. It is not the conduct or motives or purposes of the labor organization itself. That is not on trial. The counsel for the prisoner mistakes the issue, when he says it is the Order which is indicted. Hughes is not the Knights of Labor, and does not represent them in his present attitude. That organization may be perfectly lawful in its purposes and methods, and wield its power and influence usefully and justly, so far as any evidence before us is concerned. It is not here for either praise or blame. The question for the jury was what Hughes threatened, and what his description of the power that he wielded was, and it does not follow that he described the natural and normal methods of the Order, instead of a complete perversion of such *38] methods as *would have existed under a more honest and intelligent leadership. What, then, Hughes threatened, was the first question for the jury. He described what he was doing, what he could do, and what he intended to do, and it was by force of that description that the money was extorted which was paid. It is of little consequence that the notices which he scattered over the country were not produced and no direct proof was given of what he did, and thence to argue that it must be assumed to have been all innocent persuasion. If it was that and nothing more, then he added falsehood to his other misconduct, for there is nothing doubtful or ambiguous in his description of the punishment which awaited the disobedient. In his letters he tells of notices sent to a multitude of business points, and adds that the firm will feel their effects and be willing to surrender inside of three months; that "we have spent the money of our organization for results and will get them;" that quite a large expenditure had been made “in carrying on the work;" that Adler & Bros. did not know "how effectively this work has been done" or the "amount of work" put in their case; that the work was a "work of destruction" and the struggle "a war of destruction," which the sending of a check and a promise to obey would turn into a "work of construction." In his conversation with Adler he spoke of what had been done as a "boycott," and described it further by sketching what had been accomplished against the house of Benjamin & Co.; told how he had followed their salesmen along the Pacific coast, procuring the countermand of orders; and boasted that "they had never been beaten in any such controversy, and did not intend to be, no matter what it cost nor how long it took." He said also that they had $200,000, which they could expend and would spend to accomplish any such purpose "which they set out to do." While the negotiation was going on over the amount to be paid, Hughes explained, saying: "That it was a matter of justice to the retail dealers in these cities themselves that the various organizations of the Knights of Labor in these cities should be notified, because *these retail merchants being placed [*39 under the ban as handlers of the product of L. Adler & Bros. they would continue under that ban, and the stain of handling goods that were boycotted would remain with them to the prejudice of these retail merchants." There was more talk of the same general character without modifying its substance, and the attention of the jury was thus drawn to the character and meaning of the language used. Conduct takes its legal color and quality more or less from the circumstances surrounding it and the intent or purpose which controls it, and the same act may be lawful or unlawful as thus colored and qualified. One may refuse to deal with a firm because of a conviction that it does not give honest compensation for labor, and may ask his friends or the public to do the same thing, and the conduct may produce injury to the business criticised, without thereby becoming illegal. The jury were so told in substance, and permitted to judge whether that was the true quality and character of the prisoner's action. On the other hand, one may influence his friends and the pub lic to inflict the same injury of withdrawal of custom without just or excusable reason, and by fraudulently concealing the fact that it does not, and pretending that it does, exist, and using official power and influence to make effective the deception, and to force and compel unwilling dealers to desist from their purchases, and that for the sole purpose of extorting money, in which case the resultant injury will be unlawful. What Hughes threatened was found by the jury to be such an unlawful injury. They saw that he conveyed the idea strongly and clearly that unless his demand of money was complied with he could and would, by threatening the hostility of the Order, compel the retail deal People v. Hughes-Preston v. Fitch. ers to withdraw their custom, and could and would utilize the power he had, although the original occasion for its exercise was gone. Such a threat within the doctrine of the Barondess Case, and within that also of the dissenting opinion in this court, amounts to a threat to do an unlawful injury to property. People v. Barondess, 133 N. Y. 649; 61 Hun, 581. There was, therefore, a question for the jury, and the court could not properly have directed an acquittal. *40] *6. There are a multitude of exceptions to the charge of the trial judge and to his refusals to charge, the most of which are sufficiently answered by what has already been said, but one of which is perhaps entitled to a brief consideration. Complaint is made of the charge as it respects the question of what constitutes a reasonable doubt. all the details of the difficulty. It was totally immaterial except by way of explanation, and quite enough was proved for that purpose. The extortion began after the original cause of the trouble had disappeared, as Hughes's letters show, and when it was no longer the motive for a continued assault on Adler's business. Punishment for a past sin, and not obedience in the future, was the motive, or one of the motives, governing the prisoner's conduct. The other exceptions relied on have been examined, but are not such as should prolong the discussion. The judgment should be affirmed. Judgment affirmed. The obtaining of property of another by threats did or did not produce the effect sought. threats consists in the threatening, whether the United States v. Worrall, 2 Dall. 384, 1 L. ed. 426, is no occasion, in construing the statute, to hold of malice. It is not essential that the prosecutor should have been actually frightened. State v. Bruce, 24 Me. 71. Moody, C. C. 134; Reg. v. Cooper, 3 Cox, C. C. 547; Reg. v. Hendy, 4 Cox, C. C. 243. Substantially the court charged that it could not be said to exist where the jury are so firmly convinced of the facts necessary to establish the prisoner's guilt that, if it was a very grave and serious matter affecting their own affairs, they would not hesitate to act upon such conviction. A similar charge was approved in People v. Wayman, 128 N. Y. 585, and Miles v. United States, 103 U. S. 304, 26 L. ed. 481, to which the reTo prove intent, prior threats of the same spondent calls our attention. The appellant kind are admissible. Reg. v. Cooper, 8 Cox, C. criticises the opinion expressed by the trial C. 547; Reg. v. M'Donnell, 5 Cox, C. C. 153. judge, as to the unfortunate phrasing and proof of extraneous facts, as well as by the decAn ambiguous letter may be explained by character of the doctrine. That did not pre-larations of the writer. Rex v. Tucker, 1 vent him from giving the prisoner its full and entire benefit, and there is no rigid rule as to the manner of doing it. Brotherton v. People, 75 N. Y. 163. The appellant again takes out from its context the expression, "the truth of any one of the facts, or the truth of all the facts which it is necessary for the people to establish," and represents the judge as charging that a firm conviction of any one of the facts would satisfy the rule, even though there was no such conviction as to the rest. It is only necessary to read the charge to see that such an absurd construction does not belong to it and no member of the jury could have so understood it. 7. There are also a great number of exceptions to the rulings on questions of evidence. Many of them seem to us unimportant, but some which may be grouped together should perhaps not be silently disregarded, because they are selected out by the appellant for special notice. They consist largely of complaints that the court excluded evidence showing what the original difficulty was and the details of the quarrel. All that was material about it is in the case. The letters of Hughes and the answers of Adler show that it was over the number of apprentices to be employed by the manufacturers. It was not at all a question of wages, and there *41] was no claim that anybody was not fully and fairly paid. Young men who desired to learn the trade were to some extent to be shut out for the benefit of those who had learned it. The court might very well reject * The meaning of an ambiguous letter is to be inferred from all the circumstances of the case. State v. Hollyway, 41 Iowa. 200, 20 Am. Rep. 586; Longley v. State, 43 Tex. 490. See also note upon extorting money or property by threats, in Mann v. State (47 Ohio St. 556) 11 L. R. A. 656. As to extortion in office, see note to Brackenridge v. State (27 Tex. App. 513) 4 L. R. A. 360. PRESTON v. FITCH. (Rev'g 46 N. Y. S. R. 588.) Partnership-dissolution-rights of surviv or-limitation of action. An agreement by partners that they shall debt secured by mortgage, each to have and own continue to hold as tenants in common a certain an undivided half interest, does not terminate the partnership relation as to such debt,-esnership property." pecially where it refers in terms to "other part An agreement upon the dissolution of a firm, of the firm shall be assumed and discharged by that all liabilities, indebtedness, and obligations one of the partners, who agrees to hold the other harmless and free from any liability on account of the partnership, does not include expenses incurred by the former in the course of a proper effort to enforce collection of a debt due the firm, which the agreement provides shal! continue partnership property. The right of a surviving partner to contribu tion by the estate of the deceased partner prior to one held by the firm, necessarily made toward payments of interest on a mortgage to preserve the security, and toward expenses of foreclosing the mortgage, does not accrue at the closure of the mortgages it can first be detertime of payment, but at the time when by fore |