People v. Bailey

THE COURT.

The defendant was charged with a violation of section 499b, Penal Code of the State of California, a misdemeanor, in that on or about September 30, 1945, within, the city of Los Angeles, he did wilfully and unlawfully, without the permission of the owner thereof, take an automobile for the purpose of temporarily using and operating the same. An oral demurrer to the complaint was interposed by the defendant upon the ground that the complaint did not state a public offense for the reason that section 499b of the Penal Code has been repealed by implication by the enactment of section 503 of the Vehicle Code of the State of California. The demurrer was sustained and the defendant discharged. From this final termination of its case, without a trial, the People have appealed. We are of the opinion that it was error to discharge the defendant; that an amendment to the complaint may be made which will state a public offense under section 499b, and that the People should have been given an opportunity to do so.

Section 499b was enacted in 1905 and has been but once amended when in 1935 the word “aircraft” was added. It now reads as follows: “Any person who shall, without the permission of the owner thereof, take any aircraft, automobile, bicycle, motorcycle, or other vehicle, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor. . . ”

The Vehicle Act of the State of California, as enacted in 1923 (Stats. 1923, p. 517; Deering’s Gen. Laws, 1931, Act 5128) contained section 146 which was the predecessor of the present section 503 of the Vehicle Code, the latter having been passed in 1935 and amended in 1939. The pertinent parts of section 503 are as follows: “Any person who drives or takes a vehicle not his own, without the consent of the

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owner thereof and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, ... is guilty of a felony. ...”

' It is readily apparent that a striking similarity exists in the wording and coverage of sections 499b and 503. If the provisions of section 503, being subsequent in point of time, completely overlap those of section 499b, then the latter is repealed by implication and can no longer be regarded as in force. “Where two legislative enactments punish exactly the same act they'are in conflict. [Citing cases.] Where two statutory provisions are in irreconcilable conflict, the one latest in point of time will control. [Citing cases.] A later statute prescribing a different punishment for an offense works a repeal of the former one by implication.”