People v. Jones

YORK, P. J.

The defendant and appellant was convicted of one count of attempted extortion (violation of section 524 of the Pen. Code). He was tried by the court without a jury, and he appeals from the judgment, and attempts to appeal from the sentence. As there is no appeal from the sentence, that portion of the appeal is dismissed.

The appellant and one Edward Jones were accused by information filed in the superior court with attempted extortion, in that it is alleged that they attempted to extort the sum of $250 from one William J. Hayman on or about July 30, 1937. The original information was amended at the

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close of the people’s case by adding the words, “and would then and there and thereafter do an unlawful injury to the person of said William J. Hayman by arresting and causing the arrest of said William J. Hayman upon a charge of felony”. This is alleged by appellant to have been an amendment made at the close of the trial. This statement is made by reason of the fact that the appellant offered no evidence; and although the amendment was made immediately upon the close of the people’s case, the appellant did not ask for any continuance, and does not show any prejudice or surprise by reason of the amendment being made at the time it was made. Such amendment was made to conform to the proof that had been theretofore introduced.

One principal objection of appellant, urged particularly in his closing brief, is that the court erred in permitting the introduction of evidence of all the surrounding circumstances leading up to and preceding the act committed by the appellant. The record discloses that the appellant was acting with several other persons, as the result of a transaction which was started by others, but into which transaction and conspiracy the appellant later entered. The case was tried upon the theory of a conspiracy, the establishment of which was amply supported by the testimony of complainant and the admissions of the appellant in a conversation recorded by dictaphone. The transcript discloses that on several occasions when appellant and his eodefendant Jones were in the presence of the alleged victim, Hayman, appellant showed a badge, declared he was a detective, exhibited and presented to the complainant a fictitious warrant of arrest in which the latter was charged with the offense of sodomy, in connection with which bail was fixed in the sum of $2,500. The record also discloses that there was presented to the jury testimony that appellant said to complainant Hayman at the time the former produced what appeared to the latter to be a warrant or summons, “You are under arrest”. The transcript also discloses the fact that appellant, in the presence of his codefendant Jones, told the complainant that the latter would have to raise $2,500 to effect his release. The foregoing, together with other testimony in the record, overwhelmingly establishes the fact that this appellant joined a conspiracy prior to its frustration and with full knowledge of its purposes and objectives, and per