267 P. 701 | Cal. | 1928
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
Section
"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 *243 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, shall be deemed guilty of a felony. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in, any such stealing or unauthorized taking or driving, shall also be deemed guilty of a felony."
[1] It is not necessary for us to consider whether the information in this case charges the defendant with the offense defined by section
[2] The information is also fatally defective and fails to state the offense denounced in section 146 of the Motor Vehicle Act. Conceding that to "take" an automobile is equivalent to "drive" an automobile, still the information fails to state one of the material elements of the offense *244 defined by this section of the Motor Vehicle Act. This section provides that the taking or driving of the automobile must be "in the absence of the owner." The information omits entirely this requirement of the statute. Its omission renders the information insufficient to state the offense defined in section 146 of said statute. [3] This provision of the statute is highly penal in its nature and it should therefore receive a strict construction. Nor do we think section 4 1/2 of article VI of the state constitution cures this defect, as the information as it now stands fails to state any offense whatever against the defendant.
The judgment is reversed.
Preston, J., Tyler, J., pro tem., Langdon, J., Richards, J., Shenk, J., and Waste, C.J., concurred.