People v. Sharp

JAMES, J.

Defendant was charged by the information filed by the district attorney, and in separate counts thereof, with the crimes of burglary and robbery, both alleged to have been committed on the same day. The jury returned separate verdicts finding the defendant guilty of both charges. The court in its judgment declared the conviction to have been of both crimes and ordered that the defendant be imprisoned “for the term prescribed by law.” There was a motion for a new trial, which was denied. The appeal was then taken from the judgment and from the order made denying the motion.

Appellant makes several contentions as grounds for reversal of the judgment and order. He contends first that under the facts defendant should not have been convicted of two crimes. Section 954 of the Penal Code permits prosecuting officers to include in the indictment or information separate and different charges “connected together in their commission, or different statements of the same offense, or

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two or more different offenses of the same class of crimes or offenses, under separate counts.” By the authority of the provisions of that section, the separate offenses described in the information were properly pleaded, and under the facts as the evidence for the prosecution showed them to be the conviction of both offenses must be sustained. It was established by the testimony offered for the prosecution that on the evening of the 19th of December, 1921, the defendant, at about 8 or 8:30 P. M., appeared at the door at the home of Mrs. Alice Smith in Glendale, Los Angeles County, and asked permission to use Mrs. Smith’s telephone, saying that his automobile had become disabled and he wished to summon assistance. Reluctantly Mrs. Smith allowed him to enter the house. Defendant upon entering was followed immediately by an accomplice, who wore a mask and carried a gun. With the gun menacing her, Mrs. Smith was compelled to allow one of the men to remove a diamond ring valued at about fifteen hundred dollars and four other rings from her fingers. She was ' then compelled to enter a bathroom and the door was locked behind her. The two men proceeded to make a search of the house for valuables, obtaining some money and other things, after which they departed. The circumstances attending the entry of the defendant to the house of Mrs. Smith were sufficient to show the intent to commit larceny, as was charged in the information. The crime of burglary was completely made out upon such an entrance being shown to have been effected, regardless of whether any property had been secured. In addition to such acts the defendant, by means of force and fear, took from the person of the complainant her rings. . This was an act of robbery and there would appear no reason why it might not be charged separate from the burglary and a separate conviction had thereon. If it be conceded, for the sake of argument only, that the acts described were so connected together as to amount to but one offense, it may not be said that the judgment was prejudicially erroneous. If the conviction should have been for one offense alone, that conviction might properly have been for the crime of robbery. Under the law a person convicted of robbery may be sentenced to imprisonment for life. The form of judgment as now authorized to be pronounced under the “indeter