People v. Ball

[242]

CURTIS, J.

This is an appeal from a judgment of the superior court of San Joaquin County, sentencing defendant to imprisonment in the state prison at San Quentin, on his plea of guilty when arraigned on an information, the charging part of which is as follows:

“The said George Ball is accused by the District Attorney of the County of San Joaquin, State of California, by this information of the crime of taking an automobile without permission of the owner, a felony, committed as follows: The said George Ball did on or about the 11th day of November, A. D. nineteen hundred twenty seven, prior to the filing of this information, at and in the County and State aforesaid, wilfully, unlawfully and feloniously take an automobile, to wit: A Buick Roadster, Oregon License No. 193783, Motor No. 412665, for the purpose of temporarily depriving the owner of the possession of said vehicle, and at the time of so taking said automobile, the said defendant did not have permission or consent 'of the owner thereof, towit: A. M. Parry, to so take said automobile.”

Defendant claims that the foregoing statement of acts on the part of defendant set forth in the information does not describe any prescribed felony under the laws of the state of California, and because of this he asks a reversal of the judgment. The question presented by the appeal involves the construction of section 499b of the Penal Code and section 146 of the State Automobile Act, as enacted in 1923. (Cal. Stats. 1923, p. 564.)

Section 499b of the Penal Code, which was adopted in 1905, is as follows:

“Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof,'shall be punished by a fine not exceeding two hundred dollars, or by imprisonment not exceeding three months, or by both such fine and imprisonment. ’ ’

Section 146 of the State Automobile Act reads thus:

“Driving vehicle without owner’s consent. Any person who shall drive a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and