Upon appeal in a criminal case, the meager record with respect to a motion for exculpatory evidence, which the Commonwealth represented to this court it did not have, disclosed no error in the denial of the motion "after hearing." [593-594]
A threat and a demand for payment of a certain sum within a definite time, and, after the passage of that time without payment of the sum, a threat and a demand for payment of the sum by a specified day following, were separate and distinct offences, and an indictment for attempted extortion properly charged each offence in a separate count. [594-595]
Evidence at the trial of an indictment for attempted extortion, that on a certain day the defendant and a "big bald-headed man [who] looked like a wrestler" met with the victim in the defendant's automobile, that the bald-headed man was silent but that the defendant told the victim to pay a certain sum within ten days and that if he did not he would have "crapped out," warranted conviction of the defendant on a count pertaining to that day [595-596]; and evidence that on a certain day later the defendant told the victim by telephone he was coming to his home and did so and was accompanied by the bald-headed man, who threatened the victim and demanded the money, warranted conviction of the defendant on a count pertaining to the later day, even though he was silent while at the victim's home .
A contention that there was a variance between the proof at the trial of an indictment and particulars, made by the defendant for the first time in this court, was not considered. [596-597]
INDICTMENT found and returned in the Superior Court on January 14, 1969.
The case was tried before McLaughlin, J.
David Berman (Ronald J. Chisholm with him) for the defendant.
Terence M. Troyer, Legal Assistant to the District Attorney, for the Commonwealth.
SPALDING, J. This is an appeal under G. L. c. 278, Sections 33A-33G, from convictions under an indictment in two counts charging attempted extortion.
There was evidence on which the jury could have found the following: On October 22, 1968, the date of the offence charged in the first count, the defendant and another man, described as a "big, bald-headed man [who] looked like a wrestler," met with John Najarian in the defendant's automobile. The defendant asked Najarian if he knew Lou Ricci, and Najarian replied he did. The defendant then said, "Lou Ricci says you owe him $4,000," that the defendant wanted Najarian to pay it within ten days, and that if Najarian did not he would have "crapped out." The bald-headed man said nothing.
On November 1, the defendant accompanied by the bald-headed man came to Najarian's house, but left without speaking to Najarian. On the evening of November 2, the date of the offence charged in the second count, the defendant telephoned Najarian and said, "I thought you were in New York. You . . . , I'm coming right up. I'll be there in fifteen minutes." About fifteen minutes later, the defendant and the bald-headed man arrived at Najarian's house. In Najarian's living room, the defendant sat on the couch about ten feet from Najarian with his hands on his lap, while the bald-headed man stood about two feet from Najarian, bent over and snarled at him, and asked him if he had the money. He said he would cut out Najarian's tongue and shove it up his rectum and would put dynamite up Najarian's rectum and blow him up.
1. The defendant first argues that his motion for exculpatory evidence should have been allowed. [Note p593-1] The defendant's motion for exculpatory evidence was denied "after hearing." What was said or offered at the hearing, either in support of or in opposition to the motion, the record does
not disclose. The Commonwealth asserts in its brief that it represented to the court that it had no such evidence. The defendant denies this in his brief. At all events, the Commonwealth now represents that it never had and does not now have in its possession, custody, or control, or within the knowledge of any prosecuting officers, any evidence of an exculpatory nature. On the basis of the meager record with respect to this motion, we are unable to say that the judge erred in denying it. See United States v. Keogh, 391 F. 2d 138, 146-148 (2d Cir.); United States v. Wolfson, 289 F. Supp. 903, 914-915 (S. D. N. Y.).
2. The defendant next argues that he was entitled to directed verdicts because the offence should have been charged in one count instead of two. He contends that his crime was a "continuing offense" and therefore constituted one crime only. In support of this contention he cites Commonwealth v. Stasiun, 349 Mass. 38 , to the effect that "The test of single intent or general scheme is just as appropriate for the crime of soliciting bribes as it is for larceny. Solicitation of a bribe may take the form of protracted negotiations. An offer to give or accept a bribe, while it is outstanding, has a continuing effect." Id. at 45. The defendant urges that "this logic is equally . . . applicable to extortion as to bribery, perhaps more so." What the defendant overlooks is the following paragraph of that opinion where we said: "[S]eparate solicitations could, as is well established, be charged as separate offences." It is this language that we find equally applicable to extortion as to bribery.
The Commonwealth offered evidence that on two separate occasions the defendant threatened Najarian and demanded payment of money from him. Each threat and demand was separable. On October 22, the defendant threatened Najarian and demanded payment within ten days. Ten days passed and Najarian did not pay. Having thus failed in his first attempt, the defendant returned on November 2 to issue a new threat. This time he demanded that Najarian have the money by the following Monday night. There
were two distinct deadlines for payment and two distinct threats. These were, therefore, separate and distinct offences which could be separately charged. Commonwealth v. Mannos, 311 Mass. 94 , 113 (each acceptance of bribe constitutes a separate offence). Commonwealth v. Beal, 314 Mass. 210 , 226 (same).
3. The defendant further contends that the evidence is insufficient to sustain the convictions. The elements of the crime charged in G. L. c. 265, Section 25, are outlined in Commonwealth v. Pelligrini, 283 Mass. 300 , 303: "The essential factors which constitute the crime alleged are, as stated in Commonwealth v. Snow, 269 Mass. 598 , 608, `(1) a malicious threat (2) made to a named person (3) of personal injury to some one (4) with intent to extort money.'" A malicious threat of bodily injury is criminal even though intended to force the payment of a just debt. Commonwealth v. Coolidge, 128 Mass. 55 , 59. Further, the threat is to be tested objectively; the state of mind of the person threatened is not controlling. Commonwealth v. Corcoran, 252 Mass. 465 , 483-484.
As to count 1, the defendant argues that of the elements comprising the crime only that of a "named person" is proved. He bases this argument chiefly on a definition of the phrase "crap out" taken from a dictionary of American slang, pointing out that neither of the two definitions given connotes infliction of personal injury. [Note p595-1]
It is not, however, the dictionary definition of the words used that is determinative, but the words themselves and the circumstances attending their use. They might mean one thing in the abstract and quite another in a context of the sort here involved. We think that the meaning and intent of the words used was peculiarly a question for the jury
to determine. We are also of opinion that it was for the jury to decide whether the threat was made maliciously and with the intent to extort money. Therefore, there was no error in the judge's refusal to grant a directed verdict on count 1.
Najarian's testimony that he did not know the meaning of the words "crapped out," and that he was not in fact threatened, might properly have been disregarded by the jury. We conclude this because of his apparent hostility toward the Commonwealth which prompted the judge to permit the district attorney to put leading questions to him. Only the defendant's state of mind is important. In concluding that the defendant intended to threaten Najarian the jury could have properly also considered the defendant's physical appearance, the fact that he brought the big, bald-headed man with him each time he came, the type of language used, and the defendant's inflection and phrasing in the tape recording admitted in evidence as an exhibit.
As to count 2, the defendant contends that since he remained silent while the unnamed "big, bald-headed man" made the threat, he should not be held criminally responsible for them. The Commonwealth's position is that the jury were warranted in finding a "joint enterprise" based on the evidence that the two were together every time they came to Najarian's house; that on the occasion of the first threat, the defendant spoke while the bald-headed man was silent; that on the occasion of the second threat, the defendant made the telephone call which preceded the bald-headed man's threat; and that the defendant made no effort to dissociate himself from those threats. We agree. See Commonwealth v. Stasiun, 349 Mass. 38 , at 49, and cases cited.
4. The defendant argues finally that he was entitled to directed verdicts because the proof on neither count conformed to the particulars. We are of opinion that this contention is without merit. Even if we agreed that the alleged variances are significant, it is difficult to see how they could have prejudiced the defendant in the preparation of his case for trial. We find support for this conclusion in the fact
that the defendant made no claim of any prejudice at the trial. Decisive, however, is that he appears to be raising this point here for the first time. This he cannot do. Donahue v. Dal, Inc. 314 Mass. 460 , 463. He did not, so far as the record shows, bring to the attention of the trial judge his claim of variance, nor was there anything in his motion for directed verdicts that indicated that it was based on a variance. This failure deprived the Commonwealth of any opportunity to move to amend its bill of particulars which it would otherwise have had under G. L. c. 277, Section 40. See Weiner v. D. A. Schulte, Inc. 275 Mass. 379 , 385.
[Note p593-1] The motion asked that the defendant be furnished "with all evidence of an exculpatory nature within the possession, custody, control or within the knowledge of the prosecuting officer during the pendency of all matters in regard thereto."
[Note p595-1] "1. To lose; esp. to lose one's money or a bet. From dicing and gambling use in the game of craps, in which a throw of 7 or 11 in attempting to make a point causes the player to lose his bet and his turn. Not common. 2. To evade one's duty; to become afraid, to become cowardly; to withdraw from a plan or excursion; specif, to become too tired to continue enjoying, contributing to, or staying at a party or social gathering. Wide student use since c. 1945 and most common use." Dictionary of American Slang, Wentworth and Flexner (Supp. Ed.) p. 128.