275 P. 511 | Cal. Ct. App. | 1929
Appellant Clement and a co-defendant, Turner, were charged in separate counts with two crimes — robbery and conspiracy to commit robbery. Defendant Turner pleaded guilty to the charge of robbery and judgment was duly pronounced against him. Appellant Clement pleaded not guilty to both charges. He was found not guilty of robbery and guilty of conspiracy "as charged in the second count of the information."
The first count after charging robbery further alleged that at the time of the robbery Turner was armed with a deadly weapon and that at the time the defendants were arrested appellant was armed with a concealed deadly weapon. The second count charged conspiracy to commit the same robbery, alleging as overt acts (1) proceeding to the scene of the crime, (2) the arming of Turner with a revolver, (3) the robbery itself and (4) that appellant acted as lookout. The information further alleged that the second count charged acts which were part of the same transaction and event described in the first count.
The court gave the jury a blank form of verdict finding the defendant guilty of robbery in the first degree. As to the second count no instruction was either given by the court or requested by appellant to the effect that the jury should designate the degree of any crime in case they found the defendant guilty only of the conspiracy charge contained in the second count.
It is appellant's claim upon this appeal that the verdict is void for uncertainty for failing to determine the degree of the crime.
[1] Penal Code section
[3] For a like reason section
[4] Neither was it necessary to fix the degree in order that the term of imprisonment of appellant be known.
[5] Whether the robbery be first or second degree, the maximum term is the same, to wit: life. (Pen. Code, sec. 213.) The same maximum term, therefore, applies to conspiracy to commit robbery of either degree. By Penal Code, section
No minimum term, however, is prescribed by either Penal Code, sections 213 or 182, for conspiracy to commit robbery without regard to degree. Robbery of the first degree is punishable by imprisonment for not less than five years and of the second degree for not less than one year. (Pen. Code, sec. 213.) What the minimum term would be in such a case and where, if at all, it is prescribed, we need not decide upon this appeal. [6] This particular appellant's minimum term is fixed by Penal Code, section
[7] There is no merit in the claim that overt acts were not sufficiently proven. They were all proven. The appellant and his co-defendant were sufficiently indicated and identified in the testimony to show that the two defendants on trial were the ones referred to by the witnesses.
[8] The district attorney was entitled in his argument to the jury to comment upon any of the statements contained in the confession of appellant, which was duly received in evidence.
The judgment and order appealed from are affirmed.
Sturtevant, J., and Nourse, J., concurred.