
    The People of the State of New York, Respondent, v. Antonio Misiani, Appellant, Impleaded with Antonio Cincotta, Defendant.
    Second Department,
    January 26, 1912.
    Crime — attempted extortion by letters — indictment.
    Where a party received two letters both demanding money, the first commanding secrecy and delivery to a boy of a sum of money, and the second the deposit of the sum under the stabs of a factory at a designated corner, with this sentence of caution: “ Think well; fail not; if you -fail the Saturday night that you pay not will not pass,” and the defendant was seen at the time and place where the deposit was ordered, there is an unlawful demand of money and a threat to kill, constituting an attempted extortion.
    An attempted extortion may be by written or oral threat.
    An indictment for an attempt to commit extortion is sufficient if it set out the crime as the statute defines it. Where threats are made by letter it is unnecessary to allege the letters in extenso.
    
    Appeal by the defendant, Antonio Misiani, from a judgment of the County Court of Kings county, rendered against the said defendant on the 11th day of May, 1910, convicting him of an attempt to commit extortion, and also from two orders entered on the 16 th day of May, 1910, denying the said defendant’s motions for a new trial and in arrest of judgment.
    
      Thomas C. Whitlock, for the appellant.
    
      Peter P. Smith, Assistant District Attorney [John F. Clarke, District Attorney, with him on the brief], for the respondent.
   Thomas, J.:

The defendant, charged with attempt to extort money from another, was convicted, and upon this appeal affirms, (1) that the indictment is defective in that it does not state that the attempt was by use of writings, as the case shows; (2) that the writings do not show threats to do injury to the person; (3) that the evidence does not: sustain the conviction. The record contains evidence of two letters received by Caruso, both demanding money, the first commanding secrecy, delivery to a boy of a sum of money, and the second the deposit of the sum under the stairs of a factory at a designated corner, with this sentence of caution:. “Think well; fail not; if you fail the Saturday night that yoti pay not will not pass.” The defendant with two others was seen in such relation of time and place to the stoop where the deposit was ordered, and his action in stooping and with his hand as; if searching for the same, was such that the jury’s finding of complicity was justified, although his own story is that he passed the place only on his way to his home. The threat is obvious in its purpose to injure. There was an unlawful demand of money to be delivered at a definite time and place, with a statement that if Caruso failed the night would not pass. ■ There is no doubt of the menace in the words, which, though intended to be lurking, is plain. The night would pass, but it would not pass for the intended victim. . The threat to kill is not lost in the grandiloquence of the sentence. The more practical and useful discussion relates to the sufficiency of the indictment. I consider that it was unnecessary to allege the letters in extenso, but did the indictment legally charge the crime of attempted extortion in view of the fact that it was attempted by writings ? Extortion, as defined by section 850 of the Penal Law, may be committed by either written or oral threat. (Penal Law, § 851.) So attempted extortion may be by written or oral threat, but if the threat be written, the offense is a felony; if oral, it was at the time a misdemeanor. (Penal Law, § 857.) So the law remained until section 851 was amended: by chapters 121 and 602 of the Laws of 1911. The offense is in either case extortion, but extortion by oral threat was made exceptional by section 857, in that it was graded as a misdemeanor; If the indictment would charge extortion, it is sufficient to set.it out as the statute defines it, and so now as to an attempt to commit it. (People v. Weldon, 111 N. Y. 569, 574.) While section 857 remained applicable to section 851, attempt by oral threats was made a crime of a. lesser degree. But this did not require that the indictment should specially plead that an attempt was in writing to bring it under sections 850-852 and 261, as it fell within the purview of the sections, and its connection therewith was not disturbed by the disconnection of verbal attempts from section 852. In People ex rel. Perry v. Gillette (200 N. Y. 275) the indictment showed the oral threats, and it was decided that the defendant was triable by the Police Court, and that he was not legally held to answer to the indictment. But the present discussion does not concern an oral threat, which, for purposes of grading it, is made an exception to the principal offense. A case already within the body of a statute and pleadable as such would not be disturbed by the withdrawal from the statute of a class of cases to which it does not belong. The indictment charges the crime and the acts that constitute it. It was not necessary to describe that the offense was a felony and not a misdemeanor by negativing the latter and affirming the former.

The judgment of conviction should be affirmed.

Jenks, P. J., Hirschberg, Burr and Carr, JJ., concurred.

Judgment of conviction of the County Court of Kings county and order affirmed.  