People v. Crittenden

STURTEVANT, J.

The defendant was convicted of the crime of robbery. He made a motion for a new trial and also made a motion to set aside the verdict. Both motions were denied. He has appealed from the judgment and the order denying said motions.

The information filed against the defendant alleged that “Nathaniel Crittenden is accused by the district attorney of the said county of Alameda, by this information of the crime of felony, to-wit, robbery, in that on or about the 27th day of October, A. D. 1933 at the said county of Alameda, state of California, he robbed Arthur Davis of $65, more or less, lawful money of the United States, and at the time of the commission of said offense defendant was armed with a deadly weapon, to-wit, a firearm capable of being concealed upon the person without having a license or a permit to carry such firearm”. The jury returned a verdict which was as follows: “ (1) We, the jury in the above entitled cause, find the defendant guilty of the crime of felony, to-wit: robbery in the first degree as charged in the information. (2) We find the

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charge of being armed contained in the first count not true.” (Parentheses ours.)

In his first point the defendant asserts that the verdict returned by the jury is inconsistent and amounts to a verdict of acquittal. In his presentation of this point he frankly concedes that before the year 1935 the first division of the verdict would have been valid as a verdict finding the defendant guilty of robbery in the first degree. It will be noted that the information was in general terms and would have supported a verdict convicting the defendant of either robbery in the first degree or in the second degree, depending on what the jury found the fact to be. It must also be conceded that robbery in the second degree falls within a charge of robbery in the first degree. For some years section 211a of the Penal Code has provided as follows: “All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree. ’ ’ In 1935 the legislature enacted certain new provisions and certain amendments to the end that the records in penal offenses should contain more on the face thereof denoting with precision the exact nature of the offense, and that the state board of prison directors might be fully informed as to the facts. (Stats. 1935, chap. 603.) Section 969c is a new section that was added. Among other things it is therein provided that “Whenever a defendant is armed with a firearm or other weapon under such circumstances as to bring said defendant within the operation of subdivision 2 of section 1168 of the Penal Code, . . . the fact that the defendant was so armed shall be charged in the indictment or information or complaint”. That said section did not purport to add an element to the crime but did purport to add collateral information, is shown by certain provisions of the section. Among other things it is provided, “ ... If the defendant pleads not guilty of the offense charged in any count which alleges that the defendant was armed either at the time of this commission of the offense or at the time of his arrest, or both, the question whether or not he was armed as alleged must be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged the question whether or not he was armed as alleged must be determined by the court before