People v. Atkinson

BARNARD, P. J.

The defendant was charged with a violation of section 502 of the Vehicle Code, it being charged

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that on February 18, 1952, he unlawfully drove an automobile upon a public highway while under the influence of intoxicating liquor. It was further charged that he had previously been convicted, in 1927 in the Superior Court of San Benito County, of a violation of section 112 of the Vehicle Act. Upon arraignment he moved for a dismissal and demurred to the information, which were denied and overruled. He then pleaded not guilty and denied having suffered the prior conviction. A jury found him guilty as charged, including the prior conviction. The court denied a motion for a new trial, suspended the imposition of sentence, and admitted him to probation, one condition being that he pay a fine of $300. He has appealed from the order denying his motion to dismiss ; from the order overruling his demurrer; from the order denying his motion for a new trial; from the jury’s verdict; and from the judgment.

No contention is made that the evidence is not sufficient to show a violation of section 502 of the Vehicle Code on February 18, 1952, and the evidence clearly shows that the appellant had suffered the previous conviction charged, as a result of which he was fined $360. Appellant’s sole contention is that the superior court had no jurisdiction in this matter, that the justice court (in Tulare) had no jurisdiction to hold him answerable under section 502 of the Vehicle Code for a conviction previously had under section 112 of the Vehicle Act, and that the justice court was the proper place of trial. It is argued that section 112 of the Vehicle Act was automatically repealed by the enactment of section 502 of the Vehicle Code in 1935, and no longer has any effect; that a prior conviction thereunder now has no legal

effect;

and that the provisions of section 502 of the Vehicle Code were intended to apply only to one or more convictions under that section after it went into effect. In effect, it is contended that the offense committed on February 18, 1952, must be considered a first offense thereunder and, as such, was triable in the justice court.

The offense of which the appellant was convicted in 1927 was that of driving a vehicle upon a public highway while under the influence of intoxicating liquor. The language of section 112 of the Vehicle Act, under which that conviction was had, insofar as describing the offense is concerned, is substantially identical with the language used in section 502 of the Vehicle Code and substantially the same as that which has been continuously in effect since 1913. Section 502 made