People v. Chavez

NOURSE, P. J.

This is an appeal from an order denying a motion to annul, vacate and set aside a judgment and commitment.

The defendant and appellant was tried upon an information charging the crime of “burglary in the first degree”. The jury found the defendant guilty of “burglary in the first degree”, and upon that verdict judgment was entered on March 9, 1935, and the defendant was duly committed to the state prison at Folsom. He did not ask for a new trial and took no appeal from the judgment. On August 14, 1935, he filed a motion to annul, vacate and set aside the judgment and commitment on the ground that the judgment and commitment were null and void because the verdict was not sufficient to sustain the judgment.

Appellant’s point is that since the information pleaded a certain set of facts designated in the code as constituting burglary in the first degree, it was necessary for the jury to find the truth of those facts pleaded and against every other element specified in the code as constituting that crime. It must, of course, be conceded that unless the verdict or

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judgment is void on its face, it cannot be attacked in this motion to annul; any matter of error occurring therein must be raised on an appeal from the judgment, and if not so raised, it will be deemed to have been waived.

The information charged the offense of “burglary in the first degree”. It then pleaded facts showing a felonious entry into a dwelling house in the night time. The verdict read “guilty of burglary in the first degree”. This was all that was necessary under the statute. In finding the defendant “guilty”, the verdict imported a conviction of the offense charged in the information. (Sec. 1151, Pen. Code.) This offense was the crime defined as burglary in sections 459 and 460 of the code. If that offense had not been segregated into first and second degrees, the verdict need have said nothing more than “guilty”. It' was, therefore, by reason of section 1157 alone that the jury was required to find “the degree of the crime of which he is guilty”. This the jury did when it added to its verdict “in the first degree”.

(People

v.