PEOPLE v. Emil F. Hoff, Jr., Defendant and Appellant. (1957)

Appellant was charged with robbery. Following a trial by jury defendant was adjudged guilty of robbery of the first degree. As recited in respondent's brief, ‘The jury also found to be true ‘the charge’ that defendant Hoff was armed at the time of his arrest.

‘The court found that the verdict as to the defendant having been armed at the time of his arrest was erroneous in that it made a finding on a matter not alleged or supported by the evidence and ordered that verdict stricken. The allegation of being armed was stricken.

‘A probation report was ordered and defendant was arraigned for judgment; probation was denied and he was sentenced to imprisonment in the state prison for the term prescribed by law. Judgment was entered June 29, 1956.

‘On July 9, 1956, a document entitled ‘Notice of Appeal’ was filed with the Clerk of the Court. This appeal is from the judgment.'

The evidence was conflicting. It would serve no useful purpose to detail the differences. It is sufficient to note that the trial judge's finding that, ‘the verdict as to the defendant having been armed at the time of his arrest, was erroneous in that it made a finding on a matter not alleged or supported by the evidence’, is, as a matter of law, supported by the record.

In the light of the law therefore, the judgment should be, and is affirmed.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.