Iozzi v. State

Per Curiam. The appellant was found guilty of extortion 1 by a jury in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 4 years. On appeal from the judgment the appellant contends: I. The statute proscribing the offense of which he was convicted is unconstitutional as vague and indefinite.

II

The trial court erred in certain instructions to the jury.

III

The evidence was not sufficient to sustain the conviction. I The question of the constitutionality of the statute proscribing the offense of which the appellant was charged and convicted was not presented to the lower court and does not appear by the record to have been tried and decided by it. Therefore we do not decide it. Maryland Rule 1085.

But we point out that all presumptions favor the constitutionality of a duly enacted statute and it will not be declared unconstitutional unless it plainly contravenes the federal or State constitutions. Woodell v. State, 2 Md. App. 433, 437. ⁴¹⁸ II Md. Rule 756g clearly provides that upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instruction given was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. See Bennett v. State, 230 Md. 562 . As the appellant did neither, he may not assign the alleged error as of right and we do not consider it.

And we will not take cognizance of the alleged error, as suggested by the appellant; we do not find it to be plain error material to his rights in any event. III The appellant urges that “there was insufficient evidence to sustain the conviction * * * at the close of the State’s case and at the close of the entire case.” At the close of the evidence offered by the State, the appellant moved for judgment of acquittal and the motion was denied. He then offered evidence. We point out again that by so doing such motion was withdrawn.

Md. Rule, 755b. At the close of all the evidence motion for judgment of acquittal was again made and denied. It is our function in such circumstances to decide whether or not the lower court erred in denying the latter motion. 2 In so deciding we must determine whether the evidence was sufficient in law to justify its submission to the jury; to be insufficient it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find the defendant guilty beyond a reasonable doubt. Royal v. State; 236 Md. 443, 448 ; Bever v. State, 4 Md. App. 436; Tillery v. State, 3 Md. App. 142 .

The limited nature of common law extortion — the corrupt collection of an unlawful fee by an officer under color of office— and the restricted development of considering extortion in a more general sense, e.g. in the sense of blackmail, 3 as a form ⁴¹⁹ of common law robbery 4 left important areas to be covered by statute. Legislation on the subject has been widespread and although not uniform, the statutes tend to follow one of two general patterns. One emphasizes the extortion itself — the actual attainment of money or other thing of value; the other punishes the extorsive threat whether anything was obtained thereby or not. The Maryland statute is in the latter pattern.

Art. 27, § 562, Md. Code, supra, proscribing the offense of which the appellant was convicted, provides, in pertinent part: “Every person who shall verbally threaten * * * to do any injury to the person or property of anyone, with a view to extort or to gain any money, goods or chattels, or any other valuable thing shall be guilty of a felony * * It is clear that it is not required that money or other valuable thing be obtained. The essential element of the crime is the threat. If (1) the manner of threat is verbal; (2) the subject of the threat is to do any injury to the person or property of anyone; and (3) the making of the threat is with a view to extort or gain anything of value, the crime has been committed. Mo precise words are necessary to constitute such a threat.

It may be innuendo or suggestion, and the circumstances under which it is uttered and the relations between the parties may be taken into consideration. 3 Wharton’s Criminal Lazv and Procedure (Anderson) § 1398, p. 796. See 86 C.J.S., Threats and Unlazvful Communications, §§ 2-3, pp. 787-807. Anthony Perrotti, 54 years of age, testified that he operated a restaurant at 426 S. Macon Street in Baltimore City and lived in the premises “above my business” with his wife and mother-in-law. The entire first floor of the building was used for the restaurant, and contained three separate dining rooms and a kitchen.

He had known the appellant by the name of Johnny or Chitta “seven, eight years, ever since he came into the neighborhood.” On three nights previous to 20 March 1967 the appellant had eaten in the restaurant. He “had like a bel ⁴²⁰ ligerent air. He came in like he was antagonistic, but he ate and paid his check and left. I didn’t like his attitude.

He had gone to each table and stared at the people and caused them embarrassment.” On 20 March he came in about 10:00 or 10:30 P.M. He didn’t eat. He pointed at Perrotti and said, “I want to talk to