People v. Armstrong

100 Cal.App.2d 852 (1950) 224 P.2d 490 THE PEOPLE, Respondent,

v.

ALFRED ARMSTRONG, Appellant.

Docket No. 6. Court of Appeals of California, Appellate Department, Superior Court, Alameda County.

November 13, 1950. [853] Leo A. Sullivan and Edwin A. Connor for Appellant.

J. Frank Coakley, District Attorney, Edward L. O'Neil and St. John Barrett, Deputy District Attorneys, for Respondent.

[854] WAGLER, P.J.

The complaint in this case contained two counts. The first count charged a violation of section 101(a) of the Unemployment Insurance Act (Stats. 1935, p. 1226; Deering's Gen. Laws, Act 8780d). The second count charged petty theft, "in that on or about the 11th day of March 1949 said defendant unlawfully took the property of the State of California, consisting of Twenty-five and 00/100 Dollars ($25.00), more or less, lawful money of the United States." Defendant was found guilty as to each count and was sentenced to pay a fine on each or, in lieu thereof, to serve consecutive terms of imprisonment.

Defendant appeals and contends: (1) that the evidence is insufficient to show any criminal intent; (2) that section 58, subdivision (d) of the Unemployment Insurance Act provides an exclusive punishment for violations of section 101(a) of said act, and no other punishment is, therefore, permissible; and (3) that a violation of section 101(a) of the Unemployment Insurance Act is an offense necessarily included in theft and that appellant is, therefore, being punished twice for the same identical crime by dual sentences.

The statement on appeal sets forth the following facts without conflict: that on February 21, 1949, the defendant appeared at the Oakland Employment Office and there made application for unemployment benefits; that thereafter on March 11, 1949, he signed a certification that he had received no earnings for the week ending March 6, 1949; that he was thereupon paid the sum of $25 unemployment insurance for the week ending March 6, 1949; that the defendant was employed on February 28, March 1, and March 2, 1949, by the Port of Oakland; that on March 5, 1949, a check in the sum of $39.34 was issued to the defendant by the Port of Oakland as compensation; that this check was subsequently cashed by the defendant. It further appears that on February 16, 1950, defendant gave a voluntary written statement to an investigator of the Department of Employment to the effect that each time he went to the employment office to get paid, he was asked "if (he) had earnings or had been working, that he knew the law and always told them when he had been working." Appellant's only explanation at the time of the trial was that, when he received the check in question, he thought he was being paid for a period of unemployment during the preceding month.