In Re Colford

California Court of Appeal Aug 12, 1924 No. Crim. No. 813.Published

Before: Finch

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Holding. The court held that a verdict and judgment for robbery are void for uncertainty when the jury fails to specify the degree of the crime as required by statute. Consequently, the petitioner must be remanded for a new trial rather than released.

Issues

Whether a verdict and judgment for robbery are void for uncertainty if the jury fails to specify the degree of the crime.
Whether an information charging robbery is sufficient if it follows the statutory definition without alleging the specific degree.
Whether a defendant whose conviction is set aside due to a defective verdict may be retried without violating the prohibition against double jeopardy.

Disposition. remanded

Quotations verified verbatim against the opinion

“It is perfectly clear that the judgment and the verdict are void for uncertainty.”

“The verdict and judgment being void, the imprisonment of petitioner in the state prison is illegal.”

“He is not, however, entitled to be set at liberty but he must be tried anew.”

FINCH, P. J.

This is an application for a writ of

habeas corpus.

The petitioner was charged with the crime of robbery, alleged to have been committed as follows:

“The said Chas. Colford, on or about the 22nd day of March, A. D. Nineteen hundred and twenty four . . . did willfully and unlawfully and feloniously and forcibly take from the person, possession, and immediate presence of one Mrs. Ann Barnes, approximately $75.00 lawful money of the United States of America, and of the personal property of another, to-wit: The National Theater’s Syndicate, a corporation, which said taking was then and there without the consent and against the will of said corporation and the said Mrs. Ann Barnes, and was then and there accomplished as aforesaid, by means of force used upon and against said Mrs. Ann Barnes, by said defendant, by then and there putting said Mrs. Ann Barnes in fear.”

[310]

The jury returned a verdict of conviction reading as follows:

“We, the jury in the above entitled action do find the defendant Charles Colford guilty of the crime of robbery as charged in the information.”

After the usual formal recitals the court rendered judgment:

’ “That whereas, the said Chas. Colford having been duly convicted in this court of robbery it is therefore ordered, adjudged and decreed that the said Chas. Colford be punished by imprisonment in the state prison of the State of California.’’

Petitioner did not appeal and he is now confined in the state prison at Folsom. The petition alleges, in effect, that the verdict and judgment are void for uncertainty. It is also alleged that such invalidity was not discovered until after the time to move for a new trial and to appeal had expired. All persons connected with the trial inadvertently overlooked the provisions of section 211a of the Penal Code, enacted in 1923 (Stats. 1923, p. 270), and the amendment of section 213 in the same year (Stats. 1923, p. 271). Those sections read as follows:

“211a. 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 Re Colford

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FINCH, P. J.

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