Opinion
Hearing Granted by Supreme Court Nov. 9, 1928.
Appeal from Superior Court, Los Angeles County; Douglas L. Edmonds, Judge.
Charles W. Carrow was convicted of receiving stolen property, and he appeals. Affirmed. COUNSEL
Joel Terrell, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.
OPINION
HOUSER, J.
The information upon which defendant was convicted in substance charged him with the commission of the crime of receiving stolen property; also that, in the state of Kansas, prior to the commission of said offense, defendant had been convicted of a felony and had served a term of imprisonment therefor. In addition to finding defendant guilty, the jury found that he had suffered a prior conviction, as charged in the information. In accordance with the provisions of the statute (section 1168, Pen. Code), defendant was sentenced to imprisonment in the state prison for the term prescribed by law. He appeals from the judgment.
This court is unable to agree with appellant in his contention that the evidence was insufficient to support the verdict as to the charge of receiving stolen property. That defendant was in possession of the property in question and that it had been stolen is conceded. With relation thereto, the general conduct of defendant, including his admission that he knew it was "hot" (meaning that he knew the property had been stolen), together with the fact that the property was found under a clod of dirt in the front yard of defendant’s residence, where he admitted that he had concealed it, were sufficient indications of knowledge of the fact on the part of defendant that the property had been stolen.
The next reason assigned by appellant for reversal of the judgment is that the evidence adduced on the trial was insufficient to support the verdict as to the charge of prior conviction of defendant. Assuming the soundness of appellant’s contention, its importance becomes apparent from the fact that, by virtue of the provisions of sections 667 and 668 of the Penal Code, the term of imprisonment is largely increased of a person found guilty of a crime who theretofore has been convicted of an offense punishable according to the laws of this state by imprisonment in the state prison, and who has "served a term therefor in any penal institution."
The record shows, and it is conceded by respondent, that the only evidence admitted on the trial of the action relating to the alleged prior conviction of defendant consisted of testimony to the effect that, following the arrest of defendant, he had admitted that theretofore he had been convicted of grand larceny for stealing automobile tires, and had "served a term" in the state prison at Lansing, Kan.; also that, on cross-examination of defendant, he admitted that theretofore he had been convicted of a felony.
In the case of People v. Chadwick, 4 Cal.App. 63, 73, 87 P. 384, 389, where a question similar to that here involved was under consideration, it is held that the allegation in an indictment of previous conviction of a defendant is a distinct element of the charge, and that the defendant has a right to insist that the prosecution establish the existence of that element by competent evidence before he can be convicted thereof. See, also, People v. Jones, 31 Cal. 565; People v. Delany, 49 Cal. 394; People v. Simonsen, 107 Cal. 345, 40 P. 440; People v. Tapia, 131 Cal. 647, 63 P. 1001; People v. Coleman, 145 Cal. 609, 79 P. 283; People v. Vertrees, 169 Cal. 404, 146 P. 890; People v. Quarez, 196 Cal. 404, 238 P. 363; People v. Ray (Cal.App.) 267 P. 593; People v. Johnson, 73 Cal.App. 214, 238 P. 814, and People v. Villanueva, 74 Cal.App. 276, 240 P. 43.
It would seem, however, that in none of the cases to which reference has been had was the distinction directly drawn, or great consideration given to the point that the defendant was not again on trial for the commission by him of the first offense. It must be apparent that, in circumstances such as are presented by the allegations in the information herein, the defendant was charged with the commission of the second offense only, and the issue as to his prior conviction of a felony was interposed solely for the purpose of increasing the punishment for the commission by him of that offense. Otherwise, if convicted, defendant would have been subjected to a second punishment for the crime first committed by him. The allegation in the information that, before the commission by defendant of the offense of receiving stolen property, he had been convicted of a felony for which he had "served a term of imprisonment," had no relation to the offense with the commission of which defendant was charged, but related to the punishment only which might be inflicted if defendant were found guilty of the crime of receiving stolen property. People v. Wallach, 79 Cal.App. 605, 250 P. 578.
Obviously, the offense remained the same, without reference to the former status (criminal or otherwise) of the person who committed it. Moreover, it is as to the punishment for the commission of the second offense only that any provision may be found in the particular, or any, statute by which a difference is provided as affecting a person who may commit such crime. The corpus delicti of the charge, as applied to the instant case, differed in no respect from the corpus delicti in any other case where the defendant might be charged with the offense of receiving stolen property. Whether, therefore, defendant had been convicted of a felony, and had "served a term of imprisonment therefor," had nothing whatsoever to do with the determination of the status of guilt or of innocence, so far as the crime of receiving stolen property was concerned.
In the case of People v. Eppinger, 109 Cal. 294, 41 P. 1037, the defendant therein was charged with the crime of making, uttering, and passing a fictitious check and with having suffered a prior conviction for petit larceny. The jury found the defendant guilty as charged, but, in violation of the requirements of section 1158 of the Penal Code, failed to find whether the defendant had suffered such previous conviction. While in the opinion expressed by the Supreme Court language may be found which may be taken to indicate that the offense of making, uttering, and passing a fictitious check, together with the charge that theretofore the defendant had been previously convicted of the crime of petit larceny, constituted but a single offense, nevertheless the force and effect of the judgment of the court is to the contrary, in that it is ruled that the "verdict rendered should be treated as a finding against the defendant upon the crime charged, and in favor of the defendant upon the question of prior conviction," together with a direction of the lower court to sentence the defendant as for a conviction for making, uttering, and passing a fictitious check. To the same effect are People v. Dueber, 34 Cal.App. 686, 168 P. 578, and People v. Franklin, 36 Cal.App. 23, 171 P. 441. See, also, Ex parte Hall (Cal.App.) 263 P. 295.
In the case of People v. Thomas, 110 Cal. 41, 42 P. 456, the defendant was charged with the commission of the crime of burglary, with a prior conviction of an identical offense. On arraignment, defendant confessed the prior conviction. On the trial, over the objection of the defendant, a witness testified in substance that the defendant had admitted to him that he had "served two years in Folsom for burglary." In deciding whether the defendant had suffered substantial prejudice by reason of the admission of such testimony, the court said in part:
"*** The defendant having, upon arraignment, confessed the prior conviction, or pleaded guilty thereto, there was no issue as to the prior conviction to which the testimony was applicable. It was not an admission that he had committed the offense upon which he was being tried, and was wholly inadmissible as evidence tending to prove the commission of that offense. ***"
It is manifest that, if a charge as to the commission of a crime, together with an allegation of prior conviction, constitute a single offense, a verdict of guilty would cover the entire situation; whereas, if, as required by the provisions of section 1158 of the Penal Code, in addition to the verdict of guilty, a finding by the jury be necessary as to "whether or not he has suffered such previous conviction," such requirement is a clear indication that the charge of "previous conviction" is not to be taken as a part or parcel of the main charge against the defendant, but is an issue to be determined by the jury, solely for the purpose (if found in the affirmative) of increasing the punishment to be inflicted on the defendant.
Section 1844 of the Code of Civil Procedure provides that:
"The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason."
The existence of certain exceptions other than those contained in the statute may be conceded, but, so far as is known to this court, none of them applies to a situation such as is here presented. Nor may it be successfully contended that, because defendant himself may have been a witness not "entitled to full credit," the rule has no application, for it appears that, not only did defendant make the admission in open court, but another witness testified regarding a prior admission to the same effect, made by defendant to such witness. In addition thereto, defendant would be in no position to now contend that he had testified falsely regarding the matter. It thus becomes apparent that the rule suggested by appellant, to the effect that the admission by defendant that theretofore he had been convicted of a felony was, in itself, insufficient to establish the fact, is incorrect in principle and cannot be sustained.
In effect section 668 of the Penal Code provides that if the prior conviction of the defendant occur in "any other state, ***" in order that the punishment of such defendant on conviction of a felony subsequently committed by him in this state may be increased by reason of such former conviction, the offense of which he was formerly convicted must have been such that under the laws of this state it would have been punishable by imprisonment of the convicted person in the state prison. As hereinbefore indicated, the evidence herein was sufficient to establish the prior conviction of defendant of the crime of grand larceny. By the provision of section 489 of the Penal Code, the crime of grand larceny, or what is now termed "grand theft," is punishable by imprisonment in the state prison. This court is not impressed with appellant’s contention to the effect that, in addition to establishing the fact that theretofore defendant had been convicted of a felony, for the commission of which crime he had served a term in a penal institution, it was also incumbent upon the prosecution to establish the further fact that the act itself, as distinguished from the statutory offense, was such that, if committed within this state, would have been punishable by imprisonment in the state prison.
In this state, in order to constitute grand larceny (or grand theft), the value of the property taken must exceed $200. Section 487, Penal Code. To sustain the contention of appellant would mean that the duty devolved upon the prosecution to establish the fact that the automobile tires stolen by defendant in the state of Kansas were of a value exceeding $200. It is at once apparent that such a construction of the statute would place a tremendous burden upon the prosecution, not only in a case like the one before the court, but in every case in which the fact of a former conviction of a defendant, especially where it occurred in a foreign jurisdiction, was sought to be established. It is inconceivable that such was the legislative intention. The words of the statute are plain and readily understood, as intended to convey the meaning that it is the offense, as designated by the statute, rather than the act constituting the offense, which, "if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison."
Appellant also complains of the refusal of the trial court of defendant’s request to give to the jury certain specified instructions. An examination of the record herein discloses the fact that, in substance, each of such instructions was covered by other instructions which were given to the jury. As a consequence defendant was in no wise injured by the action of the court in that regard.
The judgment is affirmed.
We concur: CONREY, P. J.; YORK, J.