The order should be reversed and the relator remanded to the custody of the sheriff.
The relator was in custody upon a bench warrant issued upon an indictment and sought his discharge upon the ground that at the time the indictment was found he was under arrest upon a warrant issued by the police justice of the city of Rochester for a misdemeanor in committing the same act charged as a felony in the indictment, and that the crime was correctly charged as a misdemeanor, of which the Police Court had exclusive jurisdiction. The only question raised upon this appeal by the appellant is whether the crime charged was a felony or a misdemeanor. Other questions were raised before the special county judge and were considered by him *28in his opinion (66 Misc. Rep. 516), but only this one question is here submitted for our determination. If the crime was a misdemeanor merely, the order should be affirmed; if a felony, it should be reversed. The indictment, in brief, accused the relator and one Gano of the crime of an attempt to commit the crime of extortion in that they with force and arms did feloniously and extorsively attempt to obtain from one Stillson with his consent $500, such consent being intended to be induced by the wrongful use of fear, and a threat to publicly accuse him of a crime, the having had sexual intercourse with a woman not his.wife, he then and there being married to a third person, Alice Stillson, against the form of the statute in such case made and provided, etc. It is agreed that the threats were verbal and not written, and that the relator had been arrested and brought before the police justice and the indictment was found during the interval in which he'was awaiting examination. Extortion may be committed by obtaining property from another, with his consent, induced by a wrongful use of fear. (Penal Law, § 850.) And this fear may be induced by a threat to accuse him of a crime. (Penal Law, § 851.) The punishment for extortion is imprisonment not exceeding fifteen years. (Penal Law, § 852.) Blackmail may be committed by sending or delivering a letter or writing threatening to accuse another person of a crime, knowing the contents thereof, with intent, by means thereof, to extort property from him, and is punishable by imprisonment for not more than fifteen years. (Penal Law, § 856.) And then by section 857 of the Penal Law it is provided that a person who with intent to extort or gain money or other property verbally makes such a threat as would be criminal tinder any of the foregoing sections of the article (commencing with section 850), if made in writing, is guilty of a misdemeanor. The threat under the extortion section may be written or verbal. Under the blackmail section it must be written. The making of a verbal threat such as if in writing would constitute blackmail would be a misdemeanor under section 857. We can hardly suppose, however, that the making of a verbal threat such as would constitute extortion under sections 850 and 851 would be a misdemeanor, because if in writing as well as verbal it would be extortion. It could not have been the design of the Legislature to make the same *29act both a misdemeanor and a felony punishable by fifteen years’ imprisonment. The special county judge holds that if the threat in extortion is verbal merely, it is only a misdemeanor; that in order to be a felony it must be a written threat as well as the threat in blackmail. It seems to us this will not answér. If the Legislature intended to provide that the threat must be written in order to constitute extortion, it would have so provided. Extortion and blackmail are punishable to the same extent, fifteen years. • In extortion property must be actually obtained. In blackmail there need not be any property secured at all. The severity of the crime as regards the threat is in the fact of its being written instead of verbal. This consideration seems to have made the two crimes equally severe, and so to call for the same punishment. Section 857 evidently was intended to refer to blackmail alone, and to provide that where the threat was verbal and no property was obtained the crime should be merely a misdemeanor. That would be a reasonable provision ; but, as already stated, there could have been no design by the Legislature to make the same act both a misdemeanor and a felony, and that in sections so nearly together as 850, 851 and 857. Again, this latter section deals alone with threats, not with obtaining property by means of the threats, and the securing of property is an important element in the crime of extortion under sections 850 and 851. Section.857 does not provide that if property is obtained by a verbal threat the crime shall be a misdemeanor, but if the threat shall be verbal it shall be such lower crime. While in the case of People v. Garner (144 N. Y. 119) the indictment was under the Penal Code, yet it is some indication of the views of the Court of Appeals as to the crime of attempted extortion. The indictment under which the relator was held cliargés the crime under the Penal Law of an attempt to commit extortion, a felony punishable by imprisonment for fifteen years. (§§ 2, 851, 852.) The punishment for the crime charged in the indictment is not to exceed seven years and six months. (See Penal Law, § 261.) We think the order should be reversed and the relator remanded to the custody of the sheriff.
All concurred, except McLennan, P. J., and Robson, J., who dissented.
Order reversed and relator remanded to custody of the sheriff.