People v. Freithofer

CRAIG (ELLIOT), J.,

pro tem.

The facts are stated in the opinion of the court.

This is an appeal from the judgment imposed upon appellant following his conviction of the crime of robbery in the second degree and .from the order of the trial court denying his application for probation for the reason, as stated by the trial judge at the time, that the court did not have jurisdiction to consider such application.

Appellant does not seek a reversal of his conviction, but does ask that the judgment be reversed and the cause remanded to the trial court for consideration of the application for probation.

[167]

Appellant’s co-defendant entered a plea of guilty. Appellant’s trial was by jury and by its verdict said jury found appellant guilty of robbery in the second degree.

Robbery 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. (Pen. Code, sec. 211a.) The robbery of the second degree for which appellant stands convicted is a crime wherein the use or possession of a dangerous or deadly weapon is specifically excluded. By its verdict, finding defendant guilty of robbery in the second degree, the jury in effect acquitted defendant of robbery of the first degree. “Where a defendant is charged with the crime of robbery, a verdict of robbery in the second degree will not be reversed because under section 211a of the Penal Code, the conviction should have been for robbery in the first degree.”

(People

v.

DeVerre,

68 Cal. App. 742 [230 Pac. 197];

People

v.

North,

81 Cal. App. 113 [252 Pac. 1063];

People

v.