People v. Fitzwater

WILLIS, J.,

pro tem.

This is an appeal from a judgment of imprisonment in San Quentin founded upon conviction of petit theft with prior conviction of a felony under the “Dyer Act”. Appellant contends that under the provisions of sections 667 and 668 of the Penal Code it was error to admit proof of the prior conviction charged and to enter judgment adjudging him guilty of a felony with imprisonment in a state prison.

At the outset of consideration of this case we are embarrassed by the declaration of counsel on each side that a decision contrary to his respective contention will be a “travesty on justice”. Despite such extravagance of argument and the disturbing effect thereof on the calm of judicial inquiry, we shall carry on, hew to the line and let the chips fall where they may.

By information appellant was charged with the crime of “petit theft with prior conviction of a felony, towit, violation of the Dyer Act, a felony”, and service of a term therefor in a penal institution, the conviction being alleged to have occurred in the District Court of the United States in and for the Southern District of California on or about January 16, 1924. At the trial the guilt of appellant of the charge of petit theft was established, and there was offered and, over his objection, received in evidence a certified copy of the record of conviction of appellant in the United States court above mentioned of feloniously causing a motor vehicle

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to be transported from Oakland, California, to Los Angeles and thence out of the jurisdiction of the United States and said court to the city of Tia Juana, Baja California, in the Republic of Mexico, the defendant then and there well knowing the said motor vehicle to have been stolen and being then and there not the property of defendant, and the defendant not having the consent or permission of the owner of said motor vehicle to take, transport or cause to be transported said motor vehicle from the- county of Los Angeles to the said city of Tia Juana. It was admitted that appellant served a term of imprisonment in a penal institution under this conviction.

Section 667 of the Penal Code provides that “every person who, having been convicted of any felony either in this state or elsewhere, and having served a term therefor in any penal institution, commits petit theft after such conviction, is punishable by imprisonment in the state prison not exceeding five years”. We take judicial notice that the “Dyer Act”, so called in the information herein, is the National Motor Vehicle Theft Act, which in its pertinent parts provides that whoever shall transport or cause to be transported from one state to another or to a foreign country a motor vehicle, knowing the same to have been stolen, is guilty of a felony. (18 U. S. C. A., sees. 408 and 541.) Considering and applying the language of section 667 of the Penal Code in its literal sense and meaning, it appears clearly that there was no error in charging and admitting proof of the previous conviction of violation of the National Motor Vehicle Theft Act. For such consisted in proof of a previous conviction of a felony in this state, to-wit, in the District Court of the United States in and for the Southern District of California.