People v. James

McCOMB, J.

Defendant was convicted after trial by jury on (a) two counts of robbery in the second degree and (b) assault with a deadly weapon. The jury found that defendant was armed at the time of the commission of the robbery. The appeal is from the judgments and sentence pronounced thereon.

Viewing the evidence most favorable to the prosecution

(People

v.

Dukes,

90 Cal. App. 657, 659 [266 Pac. 558]), the facts* in the instant case are:

April 29, 1936, defendant and two companions went to the home of Mr. Griffin and, after receiving no response to their summons, broke into his home and destroyed the furniture. While they were ransacking Mr. Griffin’s home, two police officers entered the house, whereupon defendant and his two companions forced them to put their hands up and took the guns from each of the officers. They then compelled the two police officers to lie face down on the floor, tied their hands behind their backs, during which process defendant continu

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ally prodded them with a gun and threatened to blow out their brains. Thereafter defendant with his companions left the house and subsequently defendant returned to the police officer the gun which he had taken from him.

Defendant relies for reversal of the judgment upon the following propositions:

First: There is no substantial evidence to sustain the judgment of guilty of robbery in the second degree, because (a) the personal property taken from the police officer was re-horned to him by defendant, and (b) the verdict of the jury finding defendant guilty of robbery in the second degree is inconsistent with their finding that he was armed at the time of the commission of the offense.

Second:

As

to the judgment of guilty of assault with a deadly weapon, there is no substantial evidence to sustain the finding that defendant was armed with a deadly weapon.

The first reason set forth in paragraph (a) of defendant’s first proposition is untenable. The law is settled that the voluntary return of personal property feloniously taken from another will not purge the wrongful act of its criminality and prevent a conviction of robbery.