It is alleged in the indictment that at the city of New York, on the 4th day of December, 1892, the defendant at- > tempted to obtain $150 from Catherine Amos by threatening to accuse her of keeping a disorderly house, and, by means of such threat, put her in fear. The following are the sections of the Penal Code under which the defendant 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. Sec. 553. Fear such as will constitute extortion may be induced by a threat: * * * (2) To accuse him * * * of any crime.” “Sec. 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.” “See. 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.”
The crime of extortion is not committed unless the person parting with his money is induced to do so by the wrongful use of force or fear, or under color of official right. No force was used by the defendant, nor did he obtain the money under color of official right; and there is no charge in the indictment of the use of force, or of the assertion of official right. In the criminal law, putting in fear is constructive violence. 2 Russ. Crimes, (5th Ed.) 89-93. When fear is a necessary ingredient of a crime, it must actually exist at the time of the alleged commission of the offense; and if the person alleged to have been injured part with his money or property, without at the time being in fear, a crime is not committed. Rex v. Jackson, 1 East, P. C. addenda, 21; 2 Russ. Crimes, (5th Ed.) 104; *1074Reane’s Case, 2 Leach, 616,2 East, P. C. 734; 2 Russ. Crimes, (5th Ed.) 104; 1 Bish. Crim. Law, (8th Ed.) 436. If, as in the case at bar, the complainant part with his money for the purpose of convicting the wrongdoer of a crime, no offense is committed, because there is no putting in fear. Rex v. Fuller, Russ. & E. 408; 1 Whart. Crim. Law, (8th Ed.) §§ 141, 857. In the case last cited the person applied to Fry to lend him 10 shillings, and upon his refusal threatened to charge him with an unnatural crime, and got from him £1.10s. Fry parted with the money from an anxiety that his master’s family might not be disturbed, and in expectation that he might secure the prisoner. He immediately stated the circumstances to' his master and to a friend, and planned with them what he should do in case the prisoner applied again. He did apply again, and Fry appointed a place where they would meet, marked some money, engaged a constable, and, having met the prisoner; gave it to him, and had him arrested. He parted with his money in order that he might prosecute. This was held not to be putting in fear. 2 Russ. Crimes, (5th Ed.) 110; 1 Bish. Crim. Law, (8th Ed.) § 437. The evidence in behalf of the people, which we must assume was believed by the jury, established every ingredient of the crime of extortion, except that Catherine Amos was induced by fear to give $150 to the defendant. In saying this, we assume, without deciding, that the fact is immaterial that the money did not belong to the woman, but to Capt. William S. Devery, who delivered it to her for the sole purpose of having it given to the defendant. It being known (theoretically by the grand jury, but in fact by the draughtsman of the indictment) that a conviction of the crime of extortion could not be had without proving that the woman was induced by fear to part with the money, and it being known that this fact could not be proved, the defendant was indicted for an attempt to commit that crime. Catherine Amos, who was the principal witness for the people, testified that for nine years she had been the keeper of houses of prostitution in the city of New York, and that the defendant, who was the agent of a society for the prevention of crime, on several occasions since October 13, 1892, threatened to have her prosecuted for keeping such houses, and agreed that if she would pay him certain sums of money, and especially $150, he would not accuse her of that crime. She testified, and so did Capt. William S. Devery, that from October 19, 1892, to December 4, 1892, (the last date being the day on which the money was received,) 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. There is no pretense that the woman was induced by the threats of the defendant to. give the money to him. Whether certain acts are or are not criminal depends entirely on whether the person on or against whom they are perpetrated consents .to and participates in those acts. Such acts do not constitute a crime in case the assent of the person against whom they are committed is freely given. When a particular state of mind is a necessary ingredient of an offense, that offense cannot be committed unless the *1075state of mind prescribed by the statute is shown to exist. The rule is well stated by Wharton in section 149 of the eighth edition of his Criminal Law:
“It is also to be noticed, that in cases in which, as in rape and larceny, the act, to be indictable, must be against the prosecutor’s will; and when the prosecutor, by such inveigling, consents to the act, these particular forms •of prosecution cannot be maintained.”
That no injury is done to the willing is a maxim of the criminal, as well as of the civil, law, if the one who consents is capable of consenting, and consents uninfluenced by fear, force, or fraud. This rule is applicable, however, only to the alienable rights of the person consenting. The consent of a person that another might take his life would be no justification of a homicide. When acts are committed, the criminality of which depends on whether the person on or against whom they are committed assents to or dissents from their commission, and between the attempt and the execution there is interposed the consent of the person against whom perpetrated that they may be committed, an indictable offense is not made out. Whart. Crim. Law, (8th Ed.) § 177. It is plain that a conviction cannot be sustained under section 685 of the Penal Code, and that the district attorney acted wisely in not presenting an indictment for the crime of extortion.
The crucial question in this case is whether a conviction for an attempt to commit the crime of extortion can be sustained where the evidence conclusively shows the absence, on the part of the person against whom the crime is attempted, of a state of mind necessary to make possible the perpetration of the crime attempted. We take it to be a general rule, having few, if any, exceptions, that unless the completed act, accomplished as intended and attempted, will constitute a crime, no step or steps taken to perpetrate the act will amount to a criminal attempt. Bish. Crim. Law, (8th Ed.) §§ 747, 728. We are referred to People v. Moran, 123 N. Y. 254, 25 N. E. Rep. 412, as an authority to sustain this conviction. In that case the defendant committed a trespass on a person with intent to steal, and, had he accomplished the act which he attempted and intended, the crime of larceny would have been committed. That case is within the rule above stated. A boy so young that he is deemed incapable of perpetrating a rape cannot be convicted of an attempt to commit that offense, nor of an assault with intent to ravish; but he may be convicted of an assault and battery. People v. Randolph, 2 Parker, Crim. R. 213; 1 Bish. Crim. Law, (8th Ed.) § 746, and cases cited. At common law, if a person intending to steal an article take it with the owner’s consent, it is not larceny. Thorne v. Turck, 94 N. Y. 90-95; 2 Bish. Grim. Law, (8th Ed.) § 811; 1 Whart. Crim. Law, (8th Ed.) § 915. In such a case the completed act, accomplished as intended, not being a crime, none of the steps taken, being ingredients of the offense, would constitute a crime, and the taker could not be convicted of an attempt to commit the crime of larceny. If an assault should be made on a man dressed as a woman, with *1076intent to ravish, the assailant believing the person assaulted to be a woman, he could not be convicted of an attempt to ravish, because in such a case the commission of the crime of rape would be a legal impossibility. So, in the case at bar, it was a legal impossibility to commit the crime of extortion as against the woman Amos, because she inveigled the defendant to commit the act, and was not put in fear by him.
The learned recorder correctly laid down the rule in his instruction to the jury in the following propositions:
“(3) If you find that he did make such a threat, you must then find, before you can convict, that the woman Clifton was by such threat placed in fear, and that it was only through fear she was induced to agree to part with her money. (3a) If you find that this woman did agree to pay the defendant money, and in doing so acted of her own free will, then there was not an attempt to extort the money; and if you have any reasonable doubt on this point you must give the benefit to the defendant, and acquit him.”
As we have before stated, there is no evidence which tends to show that the woman acted through fear, the uncontradicted evidence being that she induced the defendant to receive the money from her. The jury failed to follow the plain instruction given by the court, and the verdict should be set aside.
The people proved that on several occasions between October 13 and December 4, 1892, the defendant and Catherine Amos were in each other’s company upon apparent terms of intimacy, driving, eating, and drinking, each in turn entertaining the other. The defendant, when on the stand, testified that he had so associated with this woman. The effect of this evidence was twofold: to discredit the defendant, and to show that he had an opportunity, by threats or by promises of protection, to induce the woman to give him money. It appears by the evidence that George C. Gran I, a discharged employe of the society, had visited Catherine Amos and other such persons, and offered, for sums of money, to prevent, prosecution by the society of which the defendant was the agent, which was known to the directors of the society. The defendant testified that he associated with Catherine Amos for the purpose of obtaining from her a written statement or an affidavit of the particulars of Grant’s proposition to her. In this connection the defendant was asked: “Q. After you reported the matter to Dr. Parkhurst and Mr. Morse, of the executive committee of the society, under whom you were acting, did you receive from them directions to pursue the matter, and to obtain, if possible, any statements of alleged blackmail from the woman Clifton, (Amos)?” This was objected to, and the evidence called for by the question was excluded, and an exception taken. Frank Moss and Thaddeus D. Kenneson, two directors of the society, were sworn in behalf of the defendant, by whom he offered to prove that the officers of the society gave him instructions to obtain a statement from Catherine Amos in respect to Grant’s proposition to her. This was excluded, and an exception taken. In these rulings the court erred. In a criminal case, when it is proved that the defendant has committed *1077some act, and the motive with which it was done is material, he may testify in regard to his motive, and may prove facts by others tending to show his intent. Kerrains v. People, 60 N. Y. 221. And when evidence tending to show a guilty motive on the part of the accused has been given, he has a right to give evidence to prove a different motive, and repel the imputation. From the evidence offered the jury were asked to infer, and probably did infer, that the motive which induced the defendant to associate with Catherine Amos was unlawful, and for the purpose of securing money from her. It was competent for him to prove, in explanation of his conduct, that he associated with the woman by the direction of the society for the prevention of crime, for the purpose of securing a statement from the woman. It is urged on the part of the people that if it were error to exclude this evidence it was cured bj’ subsequently allowing Dr. Charles H. Parkhurst to testify on the same subject'. This witness was ill at the time of the trial and his deposition was read. He testified:
“Q. Did the executive committee of the society at this meeting next subsequent to October 14, 1892, give any instruction to Gardiner? A. Yes, sir. Q. So far as they relate to Grant and his actions, please state them. A. The instructions we gave him, as far as X can recollect, were that, in consonance with his own view of the matter, as he had previously expressed it to me privately, and in consonance with our views, which were the same as his, he should seek to make a case against these women, and that he should also strive to secure from them at least an affidavit to the effect that Grant was, in the name of the society, attempting to levy blackmail upon them. We also instructed him that he should use such means as he saw fit in order to secure such affidavits. These instructions were oral.”
This did not cure the error. The defendant had the right to prove the fact by more than one witness, and it is well known that facts testified to in a deposition and read ip evidence have not the same force with a jury as those testified to by witnesses in the presence of the court. Again, this evidence related only to the instructions given by the executive committee to Gardiner. The defendant had offered to show that he had not only received instructions, but that he acted pursuant to and by reason of those instructions. For these errors the judgment should be reversed, and, as it is apparent that a conviction cannot be sustained under this indictment, the defendant should be discharged.
PARKER, J., concurs.