The sun. [volume] (New York [N.Y.]) 1833-1916, 1893-11-18
GARDNER TO BE RELEASED.
TIE GENERAL TERM DECIDES THAT
HIS CONVICTION WAS IMPROPER.

The Woman from, Whom He Was Accused
| ofTrrine to Extort Money Did Not Yield
| from Fenr-The Court Not OnIy Sets Aside
| the Verdict. bat Directs tho Prisoners
| Discharge Justice O'Brisp Dissents.
| Charles W. Gardner. the Parkhurst society
agent. who was convicted in the General ses-
sions last January OF an attempt to extort
| money. gained a favorable decision on appeal.
| in the General Term OF the Supreme Court
yesterday Not only is the verdict OF the jury
set aside. but his release is ordered. The story
Of Gardner's dolngs. which resulted In his ar
| rest, as told at the time and substantially as
afterward testified to In court. was as follows:
| In October. 1892. Catherine Amos. or Lille
Clifton as she was called. keeper OF a dieor-
| derby house at 156 West Fifty third street told
Police Captain William Devery. then In COM
mand at the West Forty. seventh street station.
that Gardner was Matchmaking her. Accord
| ing to her story. one c. Chauncey Grant. who
said he was an agent for the Parkhurst society.
had warned her that the police could not pro-
tect her from arrest, but that the eociety's peo-
| ple could Gardner. she said told her after
| ward that money paid to Grant would not help
| her. but to do business with him. She said
| she had gone to his house ut 40 Lexington
avenue on Oct. ~. and he had agreed to pro-
tect her for $50 month. She paid $50 then.
and afterward not only paid another sou but
at his suggestion made his young wife pres
| ent OF handsome necklace. That was on
| Nov. 20.
They left his house and went to o saloon at
Twenty fourth street and Fourth avenue and
drank wine. Then, she says. Gardner said
there was going to be big rumpus and that
her house was on the list to be ralded. He
finally agreed to save her for $3.50. 1t was then
that she went to Capt. Deyery. He consulted
dent Byrnes. and trap was laid for Gardner.
Mrs. Clifton agreed to pay Gard ner the
q Gs hoHfS On note:
Capt. Devery had given her for this purp9se.
she went there and paid 1t to Gsrdner: The
ts C put
in workbo and the other IN pie pocket. and
drove to the Twenty fourth street saloon. As
Gardner aighted Capt. Devery and Detective
away tho 500
marked money. The other package was
Gardner was Indicted for an attempt at ex-
tortion. He was convicted and has been IN the
Tombs since. pending the result OF the appeal.
Pr Pres R1s33 Festt and Justees rsrEes
and O'Brien. John W. Goff appeared for Gard.
sta rs The Gecsen rsedered
day was written by Justice FqlIett an Gp con,
wrote a dissenting opinion.
Justice Follett says that Gardner ga vas con
GoGs section dsne.
s IN ty Cm nGGer us YIN
Section 553 defines this fear as such as may
be induced BY threat 20 accuse him OF any
An act" the decision says. done with In
tent to commit a crime and intended. but
to Commit that crime" Section 6s5 merely
provides that "a person may be convicted OF
attempt to cETmit &C crime although 1t APP
mated. unless the court in Its discretion dis
1.-The crime OF extor,ion is not committed"
tho decision says. unless the person parting
wrongful use Of force or ;enr or under color OF
official right. No force was used by the de-
Of % rs sna there %s IS
assertion Of eci" rirH vi When fear t Is nee.
exist at the time Of the alleged commission OF
Hnd the S alleged t" have
without at the time being in fear. crime is
-" The evidence in behalf Of the people.
Jury. established every ingredient Of the
nSuesd BY s s5o r. a
deciding, that tie fact, is immaterial that the
delivered It to her Tor, the sole PURPOSE
|
known that conviction OF the crime OF extor-
ton could not pc had without proving that the
woman was induced by fear to part with the
be proved. the defendant was indicted for All
attempt to commit that crime. There was no
rretence that tho woman acted in fear.
nal depends entirely on whether the person
on or against whom they are porretrsted CON
sents TO and participates in those acts. That
offence cannot be committed unless tho state
OF mind prescribed by the statute is shown to
exist. When the prosecutor by such In
weighing consents to the act these particular
forms OF prosecution cannot DO maintained
The learned Recorder correctly laid down
tho rule in his instructions to the Jury: II
you find that he did make such u threat you
woman Clifton was by such threat placed In
fenr. and that it was only through fear she
was induced to part with her money. II you
Iendant money Of her own free will, there was
not an attempt to extort the money. and you
must ac1uit.'
THE Jury failed to follow these instruc-
lions. and the verdict should be set aside"
Justice OI'rien. In his dissenting opinion
takes Issue with the other Justices upon tho |
ground that the essence OF Il crime is In tho
Think" he says In part" that the evidence
u the intent to extort and the act done tend
which failed to effect its com m ission by reason
'ient 10 justify conviction for an attempt
he mind OF the wrongdoer and his intent. and
lot the effect or result Ipon tho G9rson sought
The crime II en VAS ar co%
,lete as tho prisoner could make It,"
Under the Judgment OF tho court Gardner
gain. for the Judgment makes it impossible
y convict him under the indictment.
THINK THE FAIR IS TOO HORsEF.