People v. Higgins

87 Cal.App.2d Supp. 938 (1948) THE PEOPLE, Respondent,

v.

EDWARD JOSEPH HIGGINS, Appellant.

California Court of Appeals.

Sept. 8, 1948. Mark F. Jones and W. L. Englehardt for Appellant.

Ray L. Chesebro, City Attorney, Donald M. Redwine, Assistant City Attorney, and Walter C. Allen, Deputy City Attorney, for Respondent.

THE COURT.

The defendant has appealed from the judgment imposed as a consequence of his conviction upon the charge that he had driven a motor vehicle "after his operator's and chauffeur's license and his driving privileges had been suspended and revoked." The record before us discloses that the defendant's operator's license had been revoked in 1942, following his conviction upon a charge of grand theft (auto). In August of 1946, the defendant filed with the Department of Motor Vehicles an application for a new operator's license. Reference was made to this application in a letter from the department addressed to the defendant in January, 1947, in which an affidavit form was enclosed. Under date of August 7, 1947, a temporary license was issued the defendant, bearing upon its face the notation that it would become void 60 days from the date of its issuance. More than 60 days thereafter, on February 17, 1948, the defendant drove a motor vehicle upon a public highway, an act which led to the filing of the complaint under which he was convicted. We have concluded that while under these facts the defendant appears to be guilty of a violation of section 250 of the Vehicle Code, he was not guilty, as charged, of having violated section 332 of that code.

Section 250, so far as it is of present interest provides: "(a) It is a misdemeanor for any person to drive a motor vehicle upon a highway unless he then holds a valid operator's or chauffeur's license ..." The maximum punishment for a violation of this section is set by section 763, Vehicle Code, as either a fine of $500, or imprisonment in the county jail for six months, or both. Section 332 covers some of the same territory covered by section 250, but permits a greater punishment for an offense in the field to which it applies: "Any person who drives a motor vehicle upon a highway when such person has been refused a license by the department or after his operator's or chauffeur's license or his driving privilege has been suspended or revoked is guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment [87 Cal.App.2d Supp. 940] in the county jail for not more than one year or by fine of not more than one thousand dollars ($1,000) or both."