People v. Naumcheff

California Court of Appeal Nov 19, 1952 No. Crim. 920, 921Published

Before: Barnard

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Holding. The court affirmed the defendant's convictions for grand theft and the finding of a prior felony conviction, holding that the challenged statutes and jury instructions were constitutional and legally sufficient.

Issues

Whether Penal Code section 668 is unconstitutional for violating equal protection and uniform operation of laws.
Whether the trial court erred in failing to instruct the jury on the definition of a felony.
Whether the trial court erred in failing to provide a full instruction on circumstantial evidence.
Whether the trial court erred in its instructions regarding the use of prior conviction evidence for impeachment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“No unconstitutionality appears insofar as this statute affects the appellant.”

“when there is direct evidence of a crime, and any circumstantial evidence received is incidental to and corroborative of the direct evidence, it is not reversible error to fail to fully instruct on the matter of circumstantial evidence.”

[280]

BARNARD, P. J.

The defendant was charged with grand theft in taking certain money from the Bank of America. In a separate information, he was charged with grand theft in taking certain money from the Security-First National Bank of Los Angeles. In each information he was also charged with- a prior felony conviction in Oregon, for forgery, resulting in a term of imprisonment in the Oregon State penitentiary. In each case the defendant pleaded not guilty, and denied the prior conviction. By stipulation, the cases were consolidated for trial. A jury found him guilty as charged in both cases, and found the charge of prior conviction to be true. Separate judgments were entered sentencing the defendant to prison, but each judgment provided that he was not adjudged an habitual criminal. He has appealed from the judgment in one case and from an order denying his motion for a new trial in the other.

The appellant first contends that section 668 of the Penal code is unconstitutional in that it violates article '4, section 2 of the United States Constitution and article 1, sedtion 11 of the California Constitution, which provide that the citizens of each state are entitled to equal privileges and immunities, and that laws of a general nature shall have a uniform operation. It is argued that section 668 draws an invalid distinction between one convicted of a crime in California and one convicted of a crime in another state, since that section applies to a crime which

could

have been punished as a felony in this state, although it was actually punished as a misdemeanor in the other state in' which it was committed.

The question thus raised is academic here since the evidence shows, without dispute, that the appellant had been convicted of forgery in Oregon and had served a term in the penitentiary pf that state as a result of that conviction. No unconstitutionality appears insofar as this statute affects the appellant.

(People

Perry,

212 Cal. 186 [298 P. 19, 76 A.L.R. 1331].) He was not adjudged an habitual criminal, and the provisions of section 668 have no direct application here.

People v. Naumcheff

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BARNARD, P. J.

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