People v. Perry

KNIGHT, J.

Appellant was accused by indictment of violating the provisions of chapter 339 of the Statutes of 1923 (Stats. 1923, p. 695), it being charged that, having been previously convicted of and served a term in the state prison for the crime of grand larceny, he did, on March 3, 1928, in the city and county of San Francisco, feloniously possess and carry concealed upon his person a loaded revolver. Upon trial he was found guilty by a jury, and this appeal is taken from the judgment of conviction and the order denying his motion for a new trial. The grounds urged for reversal relate to the trial court’s rulings upon matters connected with appellant’s pleas of former acquittal and once in jeopardy.

The record discloses the following facts: Between 7:30 and 8 o’clock on the night of March 3, 1928, appellant and a companion named Risbin, both armed with pistols, entered an apartment on upper Market Street, San Francisco, occupied by a man named Brenner, and, after robbing Brenner, fled. An alarm was given and two motor officers tools: up the pursuit and within a few minutes captured the robbers in the basement of a building several blocks distant from the scene of the robbery. Appellant was immediately searched

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and the loaded pistol used by him in perpetrating the robbery was found concealed upon his person, and when questioned he admitted having served a term in the penitentiary for grand larceny. He was first charged by information with jobbery and with prior conviction of grand larceny. When arraigned on that information he denied the prior conviction and entered pleas of not guilty and not guilty by reason of insanity to the charge of robbery. He was tried first upon the general issue and found guilty of robbery in the first degree, and the jury found also that the alleged prior conviction was true. He was then tried before the same jury upon the issue of insanity, and the verdict was that he “was insane at the precise time the offense was committed on March 3, 1928, as alleged in the information.” Thereupon ,the trial court ordered that he be sent to the detention hospital for observation by the board of insanity commissioners. About a week later said board returned its findings, declaring him to be sane. The trial court then made an order pursuant to the provisions of section 1026 of the Penal Code (as added by Stats. 1927, p. 1149, sec. 4), to the effect that, having observed the defendant in court during the two trials and having heard the testimony given thereat, “and never at any time having any doubt as to the sanity of the defendant,” and having been advised by the board of insanity commissioners that appellant was then sane, it was ordered that he be remanded to the custody of the sheriff “until his sanity shall have been finally determined in the manner prescribed by law.” About a week later, however, and so far as the record shows, before the proceeding last mentioned was terminated, the indictment in the present case was returned. To this indictment appellant interposed four pleas: not guilty, not guilty by reason of insanity, former acquittal and once in jeopardy. At the trial he made no attempt to controvert the evidence introduced by the prosecution establishing the truth of the charge set forth in the indictment, but introduced in evidence the record of the robbery trial, including the proceedings of the trial on the issue of his sanity, and at the close of the evidence presented a motion for an instructed verdict upon the issues of former acquittal and once in jeopardy. The motion was denied, and as to those issues the jury was in effect instructed to find for the people. Such verdicts