People v. Caruth

COUGHLIN, J.

In a five-count information the defendant was charged with issuing four worthless checks, each in excess of $50, i.e., violations of section 476a, subdivision (a), of the Penal Code, and of grand theft of an automobile; was found guilty on all counts; was sentenced to imprisonment in the state prison, the grand theft sentence to run consecutively with the worthless check sentences, and the latter to run concurrently with each other; and appealed.

The grand theft charge was based on the purchase of an automobile with the worthless checks described in Count 4.

The offenses occurred in 1960. The information was filed on September 24, 1964. It was alleged defendant was absent from the State of California from March 30, 1962, to August 16, 1964, which would toll the running of the statute of limitations. (Pen. Code, §§800, 802.)

T-he contentions on appeal are that (1) the evidence is insufficient to establish absence of the defendant from the State of California for the time alleged in the information, as the only evidence in respect thereto was admitted erroneously; and (2) the court erred in sentencing defendant on both the worthless check and grand theft counts.

In support of its case that the statute of limitations had been tolled, the prosecution introduced in evidence, as one exhibit, authenticated copies of the records of the Illinois State Penitentiary, consisting of a photograph, fingerprint record, and prison commitment of James Caruth. There is no contention that the James Caruth therein mentioned and identified is not the defendant, James Caruth. The commitment established that on March 19, 1962, the defendant was sentenced to imprisonment in the Illinois State Penitentiary for the term of one to five years. The fingerprint record shows that he was received in the prison on March 30, 1962. On the back of the photograph is a printed and typewritten form, obviously used as a record, containing information concerning the defendant which shows that he was received at the penitentiary on March 30, 1962, and was discharged therefrom on May 15, 1964. The certificate of the warden attached to

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this exhibit refers to the photograph, the fingerprint record, and the commitment as “copies of the original records of James Caruth . . . Defendant contends that the information on the back of the photograph was not introduced into evidence; is hearsay; and may not be considered in determining the sufficiency of the evidence to establish his presence in the prison for the period from March 30, 1962, to May 15, 1964. There is no merit to this contention. The photograph, together with the record on the back thereof, was a part of the entire exhibit certified by the warden, authenticated and admitted into evidence. The fact that, in identifying the exhibit at the time of its introduction into evidence, the district attorney did not refer to the record on the back of the photograph in of no consequence. Under the rules applicable to an appeal, no order of the court having been made to the contrary, all parts of the exhibit will be deemed to have been admitted into evidence. (Generally see