People v. Korst

DORAN, J. This is an appeal from judgment and order denying defendant’s motion for a new trial.

[2]Defendant was accused by information with the crime of burglary; the conviction of a prior offense of burglary was also alleged. A jury trial resulted in a verdict of guilty. The prior conviction was admitted on arraignment.

It is contended on appeal that the evidence is insufficient to support the judgment; also that the failure of the court to instruct the jury that a verdict of guilty required a concurrence of all twelve members of the jury, was error.

The evidence reveals that on the night of July 16, 1945, about 11 p. m., two officers while cruising in an automobile saw defendant running down the street “in a peculiar manner.” Their suspicions aroused, they followed a short distance and finally drew up and stopped the car. One of the officers stepped,out of the car and informed defendant, “we are police officers.” Defendant immediately fled and while being pursued was seen by the officer to throw away some object which, when found after defendant’s capture, was the purse or handbag, and contents, belonging to the complaining witness, Juanita Jensen. Miss Jensen lived in a one-room apartment on the ground floor of an apartment building located about one block from where the defendant was first seen by the officers. On the same night at about the same time herein mentioned, the handbag had been stolen. It had been placed on the bed near a partially open window when Miss Jensen arrived home about 11 p. m. About five minutes thereafter, attracted by a noise, she entered the room, found the screen open, the window raised and the purse gone.

With regard to the return of the jury and recording of the verdict, the reporter’s transcript contains the following:

“The Coubt: Ladies and gentlemen of the jury, have you arrived at a verdict?

“The Fobeman: We have, your Honor.

“The Coubt: Will the foreman please hand the verdict to the Bailiff? Will you read the verdict? (The Court examines the verdict.) You recall the instruction which the Court gave you as to the degree of burglary; instructions that if you find the defendant guilty of burglary it is up to you to determine the degree thereof as burglary in the first degree. I will have to ask you to return and complete the verdict by filling in the degree.