Com. v. DeVincent

• Decision Date: 28 January 1971
• Citation: 358 Mass. 592,266 N.E.2d 314
• Parties: COMMONWEALTH v. Richard DeVINCENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

266 N.E.2d 314

358 Mass. 592

COMMONWEALTH v. Richard DeVINCENT.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 8, 1970.

Decided Jan. 28, 1971.

David Berman, Medford (Ronald J. Chisholm, Boston, with him), for defendant.

Terence M. Troyer, Legal Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, REARDON, and QUIRICO, JJ.

SPALDING, Justice.

This is an appeal under G.L. c. 278, §§ 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. 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, 206 N.E.2d 672, 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, 206 N.E.2d at 677. 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, 40 N.E.2d 291 (each acceptance of bribe constitutes a separate offence). Commonwealth v. Beal, 314 Mass. 210, 226, 50 N.E.2d 14 (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, § 25, are outlined in Commonwealth v. Pelligrini,283 Mass. 300, 303, 186 N.E. 552, 553: 'The essential factors which constitute the crime alleged are, as stated in Commonwealth v. Snow, 269 Mass. 598, 608, 169 N.E. 542, 546, 68 A.L.R. 920, '(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, 148 N.E. 123.

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. ²

It is not, however, the dictionary definition of the words used that...