People v. Swann

California Court of Appeal Feb 27, 1963 No. Crim. 8551Published

Before: Burke

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Holding. The court held that when a defendant's conduct falls under a specific statute, the prosecution is precluded from electing to charge the defendant under a general felony statute. Consequently, the defendant could only be prosecuted under the specific credit card misuse statute (Penal Code section 484a) rather than the general forgery statute (Penal Code section 470).

Issues

Whether the prosecution may elect to charge a defendant under a general felony statute when the conduct is also proscribed by a specific statute.
Whether the unauthorized signing of credit invoices during the misuse of a credit card constitutes a separate forgery offense or is covered by the specific credit card statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We believe the People do not have the power to prosecute under the general felony statute in a case such as this where the facts of the alleged offense parallel the acts proscribed by a specific statute.”

“We hold that the facts of the instant case come within the acts proscribed by Penal Code section 484a specifically dealing with the offense alleged in this case and that the People are precluded from electing to prosecute under the general statute.”

BURKE, P. J.

This is an appeal by the People from the order granting defendant’s motion under section 995 of the Penal Code to set aside the information.

Defendant was charged by information with two counts of forgery in violation of Penal Code section 470, a felony. The charges arose out of defendant’s alleged use of an oil company credit card on two occasions without the knowledge or permission of the party to whom the credit card had been issued.

The facts, as developed in the preliminary hearing, show that Robert Scott Griffith lost a Standard Oil credit card which apparently was subsequently used by defendant to make purchases at a gas station of $31.03 on September 25, 1961, and $2.52 on October 5, 1961. In the course of making these purchases defendant, without permission, signed Robert Griffiths’ name on two credit invoices and obtained merchandise or service. A police officer testified at the preliminary hearing that defendant admitted signing the two credit invoices with the name “Robert Scott Griffith.”

Penal Code section 484a became effective on September 15, 1961. That section provides in part:

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“(b) Any person who:

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(6) Knowingly uses or attempts to use for the purposes of obtaining goods, property, • services or anything of value, a credit card which was obtained, or is held by the user, under circumstances which would constitute a crime under

[449]

paragraphs (1), (2) or (3) of this subdivision, is also guilty of a misdemeanor if the total amount of goods, property or services or other things of value so obtained by such person does not exceed fifty dollars ($50), or is also guilty of a felony, if the total amount of goods, property or services or other things of value so obtained by such person exceeds fifty dollars ($50).”

The sole question presented by this appeal is whether the acts of defendant constitute only a violation of Penal Code section 484a, a misdemeanor, and not in addition a violation of Penal Code section 470, a felony, thus making defendant subject to prosecution under either section.

People v. Swann

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BURKE, P. J.

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