In Re Moore

California Court of Appeal Nov 9, 1938 No. Crim. 1647Published

Before: Steel

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Holding. The court held that burglary is a single offense divided into degrees for sentencing purposes, and granting a new trial after a conviction for second-degree burglary sets aside the entire verdict, allowing for a retrial on the charge of first-degree burglary. Furthermore, the court held that the defense of once in jeopardy is waived if not specifically pleaded.

Issues

Whether first-degree burglary and second-degree burglary are separate offenses or a single offense divided by degree.
Whether a new trial following a conviction for second-degree burglary precludes a subsequent conviction for first-degree burglary.
Whether the failure to enter a plea of once in jeopardy constitutes a waiver of that defense.

Disposition. denied

STEEL, J.,

pro

tem.

The petitioners herein allege in substance the following facts:

That after trial had before a jury upon an information charging them with a felony, to wit: burglary, a verdict of guilty was returned'fixing the degree as that of burglary of the second degree. That thereafter a motion for a new trial was made by the petitioners, which motion was granted. A new trial was had before a jury upon the same information, resulting in the return of a verdict finding the defendants (petitioners herein), guilty, and fixing the degree as that of burglary of the first degree. Pursuant to judgment entered upon said last-mentioned verdict, the petitioners were committed to Folsom state prison.

Petitioners contend that the judgment is void “for the reason that at said second trial said defendants were not on trial on the charge of burglary in the first degree, but were then on trial only on the charge of burglary in the second degree; that at the first trial of said defendants they were acquitted of said burglary charge in the first degree; that by reason of having been placed in jeopardy at their said first trial on the said first degree burglary charge, said defendants were not, and could not have again been legally tried upon the charge of said first degree burglary;”

The question presented, therefore, is whether first degree burglary and second degree burglary are two separate and distinct offenses or one offense with two degrees provided for the purpose of fixing the penalty or punishment only.

The information charged the defendants with the crime of felony, to wit: burglary; and upon each trial they were tried upon the same information, and for the same offense. They were not acquitted of burglary at the first trial, but were found guilty thereof, the jury fixing the degree as that of second degree burglary.

It is unquestionably the rule, as contended by petitioners, that when a statute permits the conviction of a lower offense

[58]

necessarily included in a higher one, a conviction of such lesser included offense is an acquittal of the higher, and there cannot be another trial for the higher offense.

In Re Moore

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STEEL, J.,

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