Error to the Municipal Court of Chicago; the Hon. HAROLD P.
O'CONNELL, Judge, presiding. Heard in the second division of this
court for the first district at the October term, 1949. Judgment
affirmed. Opinion filed March 14, 1950. Rehearing denied March
29, 1950. Released for publication April 3, 1950.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 29, 1950
This writ of error is prosecuted by defendant, Frank Clarke, to reverse a judgment of the municipal court of Chicago which adjudged him guilty of the criminal offense of "Attempt Extortion," in violation of par. 240, ch. 38, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 37.188] and sentenced him to serve a term of 30 days imprisonment in the House of Correction and to pay a fine of $100 and costs. Defendant entered a plea of not guilty, and having waived a jury, the case was tried by the court.
At the close of the State's case, defendant's counsel made a motion to find defendant not guilty on the ground of variance and that the information did not charge a crime. Over the objection of defendant, the court allowed the state's attorney to amend the information by physically striking out the words "perversion," etc., and to insert over the word "perversion" the words "crime against nature." The following shows the information, as amended, with the alterations made:
"Did then and there unlawfully and wilfully verbally, maliciously threaten to accuse . . . [informant] of a
certain crime To Wit:
perversion, to expose and publish any of his infirmities of failings To Wit: that he is a pervert with intent then and there to extort from the said . . . [informant] a certain sum of money, To Wit ($50.00) Lawful money of the United States of America, in violation of Par. 240 Chap. 38 1945 Illinois Revised Statutes."
While defendant does not argue that the evidence was insufficient, a brief summary will point up the questions of law hereafter discussed. Informant casually met defendant, a police officer, in a public toilet room in a park on June 2, 1949. According to informant, defendant made homosexual overtures to him, which he repulsed, and thereupon, defendant threatened to accuse him of homosexuality unless informant paid him $50. They arranged to meet in the park on June 9th for that purpose. Defendant and informant then separated. After this conversation, informant talked to his minister and some friends and then went to the Detective Bureau, where he told police officers about the matter. Defendant did not appear in the park on June 9th, but on June 21st, went to informant's home and demanded the money. Informant told defendant he did not have the money, but arranged to meet him in the park at 5:30 p.m., the next day. Informant again contacted police officers, went to the park at the appointed time, met defendant, and after a little conversation, police officers arrested defendant.
Defendant denies the version of the story revealed by the State's evidence, but admits having gone to informant's home and having arranged a meeting with informant in the park. In a statement to the police, he explained this on the incredible basis that he was sorry for informant because of a story told him by informant that his mother was ill with heart trouble. In his testimony, however, he said he had struck the informant, that he was afraid informant was going to make trouble for him, and that that was the reason for his visit to informant's home.
The act under which defendant was charged and convicted, par. 240, ch. 38, Ill. Rev. Stat. 1945, provides as follows:
"Whoever, either verbally or by written or printed communication maliciously threatens to accuse another of a crime or misdemeanor, or to expose or publish any of his infirmities or failings, with intent to extort money, goods, chattels, or other valuable thing, . . . shall be fined in a sum not exceeding $500, and imprisoned not exceeding six months."
Defendant contends that the evidence, if it proved any crime at all proved the crime of soliciting a bribe, and not extortion. Informant testified that defendant threatened to expose him for his alleged infirmities and this clearly is within the provisions of the act under which defendant was tried.
So far as appears from the evidence, defendant objected to the amendment to the information, but the specific grounds of that objection do not appear. The statement of facts merely notes the objection so that as far as we know, the points which he here makes are made for the first time.
Defendant does not take the position that an information may not be amended. He accepts the law as clearly stated in many decisions, that an information, unlike an indictment, may be amended. He says, however, that when so amended, there must be a reverification, rearraignment, replea, rewaiver of trial by jury, and retrial, and to this, he admits of no exception.
A distinction between the highly formalized character of an indictment and the more liberal character of an ...