People v. Novo

THOMPSON, J. The defendant was charged in two separate counts of an information, first, with burglary committed by entering a dwelling house in the nighttinie with the intent to commit a felony, to wit, rape, and, seeonjl, with an assault upon a female person who was not his wife, by means of force, violence and the use of a deadly weapon, to accomplish sexual intercourse with her. The jury returned a verdict on the first count of burglary of the second degree. On the second count the defendant was found guilty of a simple assault. The defendant’s motion for a new trial was denied. Upon application therefor he' was granted i probation for the period of five years on condition that he serve [527]one year of imprisonment in the county jail. Prom the order denying a motion for new trial and from the judgment and order of commitment the defendant has appealed.

The appellant contends that the two verdicts which were returned by the jury are in irreconcilable conflict requiring a reversal of the order and judgment for the reason that it is impossible to determine what offenses the jury deemed him to be guilty of. The sufficiency of the evidence is not challenged. There is ample evidence to support both verdicts.

The appellant’s assertion is irrefutable that the verdict on the second count finding him guilty of an assault is inconsistent with the verdict returned on the first count which found him guilty of burglary in the second degree for the reason that section 460 of the Penal Code specifically classifies burglary accompanied by an assault on any person as burglary of the first degree. That section reads in part:

‘ ‘ Every burglary of an inhabited dwelling-house . . . committed by a person armed with a deadly weapon, or who . . . while in the commission of such burglary assaults any person, is burglary of the first degree.

“2. All other kinds of burglary are of the second degree.”

Having found that the defendant was guilty of burglary of the second degree, the necessary inference is that the jury must have assumed he made no assault. This verdict, in effect, constituted an acquittal of the first degree of burglary and the charge of an assault included therein. This determination that there was no actual assault is in irreconcilable conflict with the verdict on the second count to the effect that he was guilty of an assault, for both counts of the information were based on the same transaction which occurred at the same time and place. Since both counts are based on the same transaction and the finding of the jury on the first count refutes the possibility of the commission of the offense by means of an assault, the verdict on the second count is void and should be set aside. (People v. Andursky, 75 Cal. App. 16 [241 Pac. 591]; 80 A. L. R. 171, note.)