People v. Kiser

HOUSER, P. J.

Each of the defendants appeals from a judgment of conviction of the commission by him of each of the crimes of first-degree robbery and first-degree burglary.

On the trial of the action, the evidence clearly established the fact that the crimes of which the defendants were convicted were committed simultaneously, one with the other. Each of the defendants was positively' identified as one who had actively participated in the commission of such criminal offenses, although but one of them either exhibited or used a “gun” in the commission thereof. The point urged by appellants that the evidence was insufficient to support the judgment is without merit.

With respect to the fact, as in substance was found by the jury, that the defendants were “armed with a deadly weapon, to wit, a revolver, capable of being concealed upon the person”, etc., and that because of such finding, the defendants were liable to be, and in fact were, sentenced to the state prison to serve a term therein longer than that for which either of them would, or legally could, have been sentenced had such finding not been made, appellants urge the point that since assertedly it appears that the statute under the provisions of which such longer term was authorized to be imposed was not enacted until after the crimes were committed, such statutes were

“ex post facto”,

and

[437]

consequently, that they were void and of no effect as far as either of the defendants was concerned. But with respect to punishment which legally may be imposed on one who theretofore has been convicted of the commission of a felony, an examination of the several pertinent sections of the Penal Code, as well as of the “Firearms Act” (Stats. 1923, p. 695), to which appellants refer, discloses the fact that on the date when the crimes were committed, subdivision 2 of section 1168 of the Penal Code, in part, provided that “for a person not previously convicted of a felony, but armed with a deadly weapon either at the time of his commission of the offense, or a concealed deadly weapon at the time of his arrest, five years”; and that at said time section 3 of the “Firearms Act” in part provided that “ . . . upon conviction of such felony or of an attempt to commit such felony, he shall in addition to the punishment prescribed for the crime of which he has been convicted, be punishable by imprisonment in a state prison for not less than five nor more than ten years . . . ” It is also noted that both of such provisions of said statutes were in effect at the time when the crimes herein were committed; and that the judgments that were rendered against the defendants were in full accord with the provisions of such statutes and with the so-called “indeterminate sentence law”, in that in each of such judgments each of the defendants was sentenced to imprisonment in the state prison