People v. Hudson

California Court of Appeal Jun 18, 1928 No. Docket No. 1642.Published

Before: Conrey

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Holding. The court held that a reversal of an order denying a new trial effectively mandates a new trial, that a plea of once in jeopardy must specify the prior proceedings, and that a defendant cannot complain of a conviction for a lesser degree of robbery even if the evidence supported a higher degree.

Issues

Whether the court erred in proceeding to a second trial after a reversal of an order denying a new trial.
Whether the defendant's plea of once in jeopardy was legally sufficient.
Whether the evidence was sufficient to support the conviction.
Whether a conviction for second degree robbery is valid when evidence suggests first degree robbery.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“A judgment of this court reversing an order denying a motion for a new trial is, in effect, the ordering of a new trial.”

“The plea of once in jeopardy as made by appellant did not specify the time, place or court wherein appellant had been subjected to any former jeopardy for the offense charged.”

“Appellant has no substantial ground of complaint that he was convicted of second degree robbery upon evidence which would have justified the jury in finding him guilty of the more serious offense of first degree robbery.”

CONREY, P. J.

On a former appeal in this action the court reversed the judgment, and also reversed an order denying defendant’s motion for a new trial.

(People

Hudson,

86 Cal. App. 497 [260 Pac. 887].) The defendant having been convicted a second time, he now appeals from the second judgment and from an order denying his motion for a new trial.

The points on appeal are: (a) That this court on the former appeal did not remand the cause to the lower court for a new trial, and that therefore the court erred in proceeding with the trial of the action a second time; (b) that

[595]

the defendant entered a plea of once in jeopardy, and that the jury did not pass upon that plea; (c) that defendant was erroneously convicted of second degree robbery in this, that the information disclosed a charge of first degree robbery and that the evidence proved that the guilty parties were armed with rifles, and that therefore they could not have been guilty of any offense other than first degree robbery; (d) that the evidence is not sufficient to justify the verdict.

There is no merit in any of these contentions of appellant. A judgment of this court reversing an order denying a motion for a new trial is, in effect, the ordering of a new trial.

(People

Lee Look,

143 Cal. 216, 220 [76 Pac. 1028].)

The plea of once in jeopardy as made by appellant did not specify the time, place or court wherein appellant had been subjected to any former jeopardy for the offense charged. (Pen. Code, sec. 1017;

People

v. Moronati, 70 Cal. App. 17 [232 Pac. 991];

People

People v. Hudson

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CONREY, P. J.

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