People v. Burns

McFARLAND, J.

The defendant was charged in the information with the crime of robbery, and the verdict was guilty of an “attempt to commit robbery.” The information also charged two prior convictions, one of petit larceny and

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the other of a felony. The defendant pleaded not guilty to the charge set out in the information, and admitted the prior convictions. The judgment was imprisonment in the state prison for a term of nineteen years; and defendant appeals from the judgment and from an order denying his motion for a new trial.

We do not find in the record any valid reason for reversing the order denying a new trial.

The contention of appellant that there is no such crime in this state as an attempt to commit robbery is not maintainable. It was held otherwise in

People

v.

Lee Kong,

95 Cal. 666,

1

and

People

v.

Gardner,

98 Cal. 127. Section 664 of the Penal Code clearly creates such crime.

Instruction XXIII, upon the subject of reasonable doubt and “moral certainty,” to which appellant objects, is substantially the same as the instruction on that subject reviewed by this court in the recent case of the

People

v.

Huntington, post,

p. 261; and it was held in the latter case that the giving of such instruction was not a ground for reversal.

There is a part of instruction XVII which at first blush gives some plausibility to appellant’s objection to it. Appellant contends that by this instruction the jury- was substantially told that they could not convict him of only a simple assault unless it appeared beyond a reasonable doubt that such assault had not been made with a felonious intent to commit robbery or grand larceny; of course, such an instruction would have been erroneous. But this is clearly not the meaning of the instruction as given. It merely tells the jury that a verdict of guilty of a simple assault would be a finding that such assault had been shown beyond a reasonable doubt, and that—as the instruction proceeds—“it had not been shown to a moral certainty and beyond a reasonable doubt either that such assault had been made in conjunction with a specific felonious intent to commit either robbery or grand larceny, as herein defined, or that a felonious attempt had been made to commit either of those offenses, as herein defined.” Taking the instruction as a whole, it is clear that the jury could not have been misled by it.