People v. Courtney

[200]

ARCHBALD, J.,

pro

tem.

An indictment was returned by the grand jury of Los Angeles County charging Don Courtney, John Sullivan and John Joseph Courtney, who gave his true name as John J. .Creely, with the crime of extortion, in count I. In count II the accusation names the crime as extortion, but the statement of the acts constituting such offense describes the crime of robbery. The dates, the name of the victim and the amount of money are identical in both counts. Defendants Don Courtney and John J. Creely were arrested and arraigned, and at the time set for pleas, count II was amended by the court by striking out the word “extortion” and inserting instead “robbery”, without resubmitting the matter to the grand jury. At the time the indictment was returned defendant Sullivan was in Canada, so far as appears, and remained there until extradited. At the time set for the trial of Courtney and Creely the latter was present, but Courtney was not, and the trial proceeded as to Creely alone, who was convicted on count I and found not guilty on count II. Thereafter, defendant Sullivan was returned from Canada and Courtney was apprehended. Sullivan entered a plea of not guilty to the indictment. Courtney had already entered the same plea thereto. At the date set for their trial both defendants entered further pleas of “prior acquittal” and “once in jeopardy”. Defendant Sullivan objected to trial on count I on the ground that he was extradited to be tried for the crime of robbery, extortion not being an extraditable offense, and that under the Webster-Ashburton treaty with Canada he could only be tried on the charge on which extradition was permitted. On motion of the district attorney count I was dismissed and the trial proceeded on count II, which also charged Courtney with a prior conviction, as to which he had theretofore pleaded guilty. The jury returned verdicts, as to each defendant, of guilty of second degree robbery, and as to the pleas of prior acquittal and former jeopardy the jury found for the People. From the judgments of conviction entered on said verdicts and the orders denying their respective motions for a new trial defendants Courtney and Sullivan have appealed.

Appellants contend (1) that the court erred in amending count II as it did, (2) that there is a fatal variance between the offense charged and that proved, (3) that the acquittal