PEOPLE v. NOVO (1936)

On petition for rehearing we are satisfied the opinion which was filed correctly states the law. Paradoxical as it may seem, the fact that the verdict in the first count is inconsistent with that which was rendered on the second count on the mere element of an alleged assault which was involved in both counts does not render the verdict on the first count void for the reason that the crime of burglary with which the appellant was charged in the first count is complete, regardless of whether or not he committed an assault. The only inconsistent feature of the verdicts which were rendered is that the jury first found that he did not commit an assault, and in the second count they found that he did commit a simple assault. The first verdict nullifies the second one, for, in effect, it is an acquittal of the charge of assault. The fact that the second verdict is void conflicts in no way with the validity of the first verdict for it may stand regardless of whether an assault was or was not committed. By the first verdict the jury merely found that the defendant entered the building with intent to commit rape. We are therefore of the opinion the verdict on the first count should stand.

The petition for a rehearing is denied.

PER CURIAM.