People v. Covington

A petition for hearing was granted in order to consider more fully the question whether the evidence is sufficient to support the verdict finding the appellants guilty of the crime of robbery. After further consideration of the record we are satisfied that proof of essential elements of robbery is lacking, but that the appellants are, under the evidence, guilty of petty theft. We are in accord with the disposition of the appeal on this and other points by the District Court of Appeal, Second Appellate District, Division One, and adopt with slight modifications the opinion of that court, prepared by Mr. Presiding Justice Conrey, as the opinion of this court, as follows:

“By information in three counts the defendants were accused as follows: By Count I it was charged that on March 5, 1933, the defendants murdered one Marjorie Barr; by Count II it was charged that on the same date the defendants committed the crime of robbery, said crime being a different offense of the same class of crimes and

“By Count III it was charged that on said date the defendants committed the crime of burglary by wilfully entering the house of one Stephens, with the intent then and there to commit theft. It was alleged that this crime was a different offense but connected in its commission with the crime set forth in Counts I and II.

“The defendant Peterson was convicted on Count I and Count II, and acquitted on Count III. The other defendants, who are appellants here, were acquitted on Counts I and III and were convicted of robbery as charged in Count II. This appeal is from the judgment of conviction of appellants on Count II, and from the orders of the court denying their motions for a new trial.

“The events referred to in the information all took place at the residence of one Delbert Stephens, where he lived with his family. Miss Barr and another young woman known as Miss Hammond were living with the Stephens family. At six o’clock in the evening of March 5th, Stephens with his wife and son left the house and, there being no one else there at home, locked the front door. The' windows were locked, except one which had no lock but was screened. During the evening, and while the house was thus vacant, the defendants came to those premises and entered the house. One of them took off the screen and went in through the window, and let the others in by the door. Barnett was acquainted with Stephens and had been in this house before, and according to his testimony Stephens had given Mm permission to enter the place. ‘We hung around awhile and thought we would go in and wait for Mr. Stephens to come home, so we took off the screen and went inside as he told me to do many times’. Stephens, on the other hand, denied that he had given Barnett permission to enter the house at any time when Stephens was absent although he admitted that Bar

“After the defendants had been for some time in the house, the two young women above mentioned came home and proceeded to entertain the defendants as guests. Without entering into details of the story, it should he enough to say that there was some eating and drinking, and after a while Miss Hammond retired to her room. The evidence shows that while she was thus absent Miss Barr was hit with a sap or blackjack in the hands of defendant Peterson. Prom the effects of that blow she died a short-time after-wards at the hospital to which she had been taken.

“According to the testimony of Miss Hammond, while she was in her room as above stated, she heard the deceased scream. Thereupon she jumped out of a window and ran to a neighbor’s house. When she returned a few minutes later with a man who came at her request, the defendants had gone, and Miss Barr was in the bathroom and blood ‘was all over her’. A diamond ring and a watch which deceased had been wearing were gone, and an electric clock and a cigarette lighter were missing.

“ In support of the appeal the first point suggested is that the information failed to charge the offense of robbery, or any public offense. By the direct terms of the information the defendants were, in general terms, accused of the crime of robbery. But it is contended that the accusation, a substantial part of which we have quoted, is insufficient to allege a public offense ‘in that it does not contain words sufficient to give the accused notice of the offense of which he is accused’. In other words it is contended that the information does not comply with the requirement of Penal Code, section 950, that in charging an offense each count shall contain a ‘statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended’. But the rule governing this requirement is more particularly stated in section 952, as amended in 1927, and further amended in 1929. Among other things, it is there provided that the statement that the accused has committed the specified public offense ‘may be in the words of the enactment describing the offense

“ The next point is that the charge of robbery was improperly joined with the charge of murder, ‘in view of -the fact that appellants were acquitted of murder’. Of course this contention is without merit for the district attorney could not know in advance that appellants would not be convicted of the murder.

“Finally appellants claim that the court erred in refusing to give to the jury certain requested instructions. Some of these requests were properly refused because the subjects thereof were sufficiently covered by other instructions given. Some of the requested instructions as offered by appellants were erroneous in their statement of the law.

Omitting from further' consideration all of those instructions, there remains one further item which seems to be of substantial merit. Appellants requested the following instruction: ‘You are instructed that if you do not believe that a robbery or burglary was committed but that a theft was committed by the defendants in the house of Mrs. Stephens you are instructed to find said defendants guilty of petty theft if the value of the property taken was $200.00 or less or grand theft if $200.00 or more’. This instruction should have been given, except that the last three words should have been, ‘more than $200.00’.

“These appellants stand convicted of robbery. . . . The jury might well have believed that appellants did not foresee that Peterson would commit the murderous attack, or the robbery of jewelry from the person of Miss Barr, and did not aid or abet the same. But appellants did share in the theft of other articles which were taken away at the

“In accordance with the foregoing statement of the law and upon consideration of the record, and particularly the evidence showing the part taken by appellants in this unfortunate affair, we are of the opinion that the verdict and judgment of conviction should be reduced from robbery to petty theft.”

The judgment of conviction of the defendants Covington, Kozak and Barnett of the crime of robbery is modified. The cause is remanded to the trial court with directions to enter judgment against each of the defendants finding him guilty of petty theft, and thereupon to pronounce judgment upon him as prescribed by law.