People v. Brain

WORKS, J.

By information filed by the district attorney defendant was charged with the crime of robbery. He was convicted and appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Long before the filing of the information which eventuated

[110]

in the conviction in the present case, appellant had been charged, for a house-breaking immediately preceding the robbery, with the crime of burglary. To this earlier charge he had pleaded guilty and had made an application for probation. The application was denied, appellant was sentenced to a term in the state prison and was incarcerated pursuant to the sentence. In the present case he pleaded not guilty, and he entered special pleas of former conviction, former acquittal and once in jeopardy. In support of these special pleas he proved, at his trial under the charge of robbery, the facts above set forth concerning the earlier charge. This was the only defense made. The trial judge instructed the jury that the special pleas were not sustained by the evidence.

Appellant contends that the special pleas were good, that, therefore, the instruction given by the judge was erroneous, and, moreover, that the judgment of conviction of robbery cannot stand. In support of this position appellant cites

People

v.

Defoor,

100 Cal. 150 [34 Pac. 642], and other eases. In the decision named the court, in upholding a plea of former conviction and once in jeopardy, quoted from a Tennessee case to the effect that where a single transaction or set of facts includes the commission of several crimes “the prosecutor may carve as large an offense out of it as he can, but it is said ‘he must cut only once.’ ” And, of course, in “cutting once” out of the facts of a single transaction, the “prosecution” may charge different offenses in separate counts of the indictment or information (Pen. Code, sec. 954). Here, however, we do not deal with the facts of a single transaction. The burglary was complete when the felonious entry into the house was effected, and the robbery was a second and later “transaction”