People v. Mundt

■ TUTTLE,

The defendant in this case was tried before a jury and convicted of the crime of robbery in the first degree. He now appeals from a judgment of conviction and an order denying motion for a new trial.

The main witness for the prosecution was John Hill. Mr. Hill had been at a dance-hall in Sacramento, and at about 2:00 o’clock A. M. on January 8, 1936, had left the dance-hall to get into his automobile which was parked on Fifth Street, just south of the corner of Fifth and J Streets. He had in his possession approximately $450 which he had drawn from the bank, with which to purchase some horses. As he came towards his automobile, the defendant and one Henry Harris stepped out, each with a drawn revolver, pointed their revolvers at him, ordered him into the automobile and got in with him. They drove over the main bridge toward the Yolo causeway, Hill driving while the defendant and Harris covered him with their guns. After proceeding a couple of miles they ordered Hill to stop, and the defendant took the wheel, with Hill placed in the front seat between defendant and Harris. Defendant then drove to a point just past the Davis end of the causeway. They stopped the car, ordered Hill out, took the $450 from him, tore his raincoat into strips, with which they bound him, and left him lying bound under the end of the causeway trestle; they then took his automobile and drove away. Hill finally broke his bonds, and spent two and a half hours walking back to Sacramento, (over seven miles). Upon his arrival in Sacramento he notified the police.

Henry Harris was caught, tried and convicted of first degree robbery and sentenced to Folsom Prison, he having a former felony record. The defendant was subsequently arrested in Colorado, and served a term in the Colorado state prison for grand theft. Upon the expiration of that sentence he was returned to Sacramento for trial upon this charge.

It is first urged as a ground for reversal that the court erred in failing to submit to the jury a form of verdict

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covering robbery in the second degree. In concluding his instructions upon the law of the case, the court used the following language:

“Upon retiring to your jury room, you will first select one of your number to act as your foreman. I have directed and caused the clerk to prepare the different forms of verdict for you to take with you into the jury room. These forms have no significance in or of themselves. They are prepared by the clerk merely for the purpose of saving you the trouble of preparing it when you find a verdict. When all twelve of you have agreed upon a verdict, all your foreman will do will be to sign the particular verdict that you have all agreed upon. You can take the one which you find, on arriving at your conclusion, and return into court with the same. I read these forms of verdict to you. After the title of court and cause they are: ‘We, the jury in the above entitled cause, find the defendant William Mundt guilty of the crime of robbery as charged in the information, of the first degree.’ ‘We, the jury in the above entitled cause, find the defendant William Mundt not guilty as charged in the information’.”