People v. Richards

GAROUTTE, J.

The defendant was convicted of the crime of robbery, and appeals from the judgment. Two contentions are made by the appeal—viz.: 1. The information is not sufficient; and 2. The court erred in instructing the jury.

After the jury was sworn the defendant moved the court to disallow any testimony, upon the ground that the information did not state facts sufficient to constitute a public offense, and after conviction he moved an arrest of judgment upon the same ground. These motions were denied.

[128]

It is not questioned that the information sufficiently charges the crime of robbery from the person by means of force and violence, except as to the description and value of the property taken. The property taken was alleged to be personal property of Prank Geary, and to consist of “about ninety cents or more.” The facts charged constitute a public offense.

(People

v.

Chuey Ying Git,

100 Cal. 437.) It therefore follows that the motions made to disallow testimony and to arrest the judgment were properly denied. Possibly, the information is susceptible to a special demurrer, but no demurrer was urged against it.

It is claimed the court erred in instructing the jury as follows: “If you are satisfied from the evidence, to a moral certainty and beyond a reasonable doubt, that the defendant by means of force and violence took from the person and possession of Prank Geary, and against the will of said Geary, any personal property belonging to said Geary, then your verdict should be guilty.” This instruction was clearly erroneous. The defendant was charged with the crime of robbery alleged to have consisted in taking certain particular personal property—to wit, “about ninety cents or more.” By this instruction the jury was told to convict if the crime of robbery was committed by him in the taking of any personal property from Prank Geary. If the evidence disclosed that he took from Geary a knife or hat or watch, then this instruction told them that they should convict him. Under the information the defendant could only be convicted by the production of evidence showing that he took personal property answering substantially to that described in the pleading, and an instruction to the jury should have been given to that effect. It is thus plain that the instruction is erroneous. Upon its face it presents an unsound proposition of law. Viewed from any and every angle, it is unsound, for under no possible state of circumstances which the record might present, if the evidence was before us upon a bill of exceptions, can its legality be justified.