Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.
The defendant Matule was convicted of the statutory offense of extortion, denounced as a misdemeanor by N.J.S. 2 A:105-1. He was acquitted on an indictment for conspiracy to extort, along with a co-defendant, Frank Sogorka. The latter was also indicted for extortion, but acquitted.
From the proofs at the trial the jury could have found the following facts. Matule and Sogorka were members of the Borough Council of the Borough of Fair Lawn in and for some time prior to the month of July 1956. Ralph Vail operated a new car Chevrolet agency in the borough. The zoning ordinance did not permit a used car lot in conjunction with an automobile sales business in the district where Vail's showroom was situated. This was a business handicap which Vail had tried for years to overcome by attempting to secure an amendment to the ordinance. Such
an amendment was adopted by unanimous vote of the borough council on July 10, 1956. Vail thereafter was entitled to operate a used car lot, subject to the requirement of an annual license issuable by the borough for a $100 fee.
About two weeks later Sogorka telephoned Vail and requested they meet for dinner at a Howard Johnson restaurant near the George Washington Bridge. Vail went there and met Sogorka and Matule. In the course of the ensuing conversation Sogorka and Matule told Vail they "had put in an awful lot of time and hours" on the used car lot ordinance "and they wanted [him] to pay to them a certain sum of money as a result of that." Asked for the amount sought, they said $5,000. Vail responded: "Jesse James did it with a gun and mask but you fellows look me in the face and state an amount as easily as that." There was proof from which it could be inferred Vail agreed to the request.
Subsequently Sogorka spoke to Vail on the telephone and told him Matule needed $2,500 for payments on a summer house he was building, and Vail agreed to pay it. Matule then called Vail and said he would send his wife over for the money. Mrs. Matule went to Vail's office with a letter of introduction requesting he give her "the papers" Matule was to sign. Vail put $2,500 in cash in an envelope and gave it to Mrs. Matule. He later made three $500 cash payments to Sogorka.
When asked why he yielded to the demands of the defendants, Vail testified:
"The difference was this. These gentlemen were in control of the situation in Fair Lawn and I had to get a used car license every year or else I couldn't operate my used car lot again, and a hundred and one things in relation to authority in power that could make life a little bit hard for a business man in that community. That was my thinking when I yielded to that request. Right or wrong, that was it."
Both Matule and Sogorka denied any meeting at the Howard Johnson restaurant. Matule testified he met Vail at his showroom in August 1956 and told him he had been
compelled to borrow $1,500 to finance his last election campaign. Vail offered to help. Later Vail telephoned, asking him to come in to see him. Matule said he could not come in person but would send his wife. Mrs. Matule returned from Vail's office with an envelope containing $1,500. He used it to pay campaign expenses.
The first ground of appeal is that the motion to acquit at the trial should have been granted because the State did not prove the crime of extortion. The argument is that unless the evidence shows an element of coercion or oppression in connection with the receipt or taking of the money the crime has not been committed. It is argued that the mere taking of money not due him by an official, even in relation to performance by him of his duties, does not establish the offense. We propose to show that defendant's position is legally unfounded when we deal with the attack upon the court's charge to the jury. At this point it is sufficient to say that even if the elements of oppression or coercion were indispensable to the crime the evidence adduced would, in our judgment, have been sufficient to permit the jury on appropriate instructions to find in the affirmative on the presence of these factors. It was clearly inferable from Vail's testimony that he was a ...