*1 to appel- answer 1066], complete is a 196 Cal. lants’ contention. from is affirmed. appealed judgment J., Ward, concurred.
Knight, J., and rehearing was denied June petition A for a Supreme hearing by the for Court appellants’ petition hearing. J., Schauer, voted July 27, 1944. denied May 29, Dist., First Div. One. No. 2281. 1944.] [Crim. KRUPA, Appellant. GENE PEOPLE, Respondent, v. THE *2 Ehrlich, W. Roy J. A. Sharif and Alfred M. Miller for Appellant.
Robert Kenny, Attorney General, W. David Lener, K. Deputy Attorney General, Brady, Matthew District Attor- ney, and Leslie Gillen, Attorney, C. Assistant District for Respondent.
PETERS, P. J. by jury, After a trial defendant was found guilty of a violation of section 11714 of the Health Safety judgment From conviction, Code. from the orders denying his motions for a trial, new ar judgment, rest of stay pronouncement judg and to ment, prosecutes appeal. denying The orders his judgment stay pronouncement motions arrest of and to judgment appealable, ap are but are reviewable on the peal judgment. appeals from the For this reason the direct from (People Williams, such orders must be dismissed. 1019]; Fitzgerald, Cal. Cal. App.2d 180 718]; see cases collected Cal.Jur. p. 492, 508.) § information,
The originally amended, framed and as charged contained two first count counts. The a violation of section Safety Code, felony. the Health and That provides: “Every person employs, section hires, who selling, uses minor in unlawfully transporting, carrying, sale, preparing peddling using any narcotic is felony punishable by imprisonment in prison the State for not less than year years, nor than more six and for subsequent each imprisoned in prison offense shall be the State for not less than six years.” second count violation of Welfare and Institutions is, contributing to delinquency minor, of a a misdemeanor. arraigned,
When pleaded guilty defendant to the misde- *3 charge meanor charge. not guilty felony and to the He also interposed plea, one, judgment as to count that the about be entered plea two, his of to count would be a conviction of the same offense count one. The court, full knowledge rely that defendant intended to judgment on the two, of pronounced conviction under count judgment on ninety that count appellant and sentenced days’ imprisonment and a fine of The court then ruled $500. that conviction of count two was not a bar to a one, of count and the proceeded to trial on that case count. produced The evidence amply supports on the trial judgment. night shows that on the of January 18, Krupa instructed property Pateakos, his valet and man a twenty minor of age years, go his, of Krupa’s, hotel room and an envelope pocket; remove from his coat envelope Pateakos removed thirty-seven which contained marijuana cigarettes from Krupa’s pocket; coat that he was attempting to leave hotel envelope, with that and another containing cigarettes, two and one-half Pa- such removed teakos from Krupa’s room, the desk in he, Pateakos, when arrested agents of Federal Bureau of Nar- This cotics. evidence supports implied finding obviously minor “a or used employed appellant jury of the “narcotic” “carrying” a transporting” unlawfully Safety Code. the Health and 11714 of of section violation sufficiency upon the is made attack no direct appeal, thisOn conten- main However, in addition of the evidence. that several contend appellant does jeopardy, tion of double com- errors were and reversible serious, prejudicial, other have we the conclusion trial. view of mitted at the dis- necessary to it is not jeopardy, of question on the come to alleged errors. cuss these other charged a violation information amended one of the
Count fol- Safety and Code the Health of section 11714 of on or about Krupa, “The said Gene lowing language: forty-three, and hundred January, A.D. nineteen day 18th Francisco, hire, employ did County City at and of San twenty age of Pateakos, minor of the a and use one John carrying quantity a and years, unlawfully transporting marihuana, also narcotic, cigarettes containing to-wit: also cannabis americana.” known as cannabis and as indica information, the amended count, The second as set forth in District by the Krupa is also accused as follows: “Gene Francisco, State Attorney County of San City and misdemeanor, California, information, by this of the crime Institu- of the Welfare and to-wit: Violation of Section 702 as follows: tions of California committed Code State day January 18th Krupa The said Gene or about the City County forty-three A.D. nineteen hundred and at the Francisco, California, to induce of San did endeavor State Patea- persuade persuade one John did induce years, go kos, age twenty minor of male him, and remove Krupa room the said Gene obtain transport pocket from of a coat located therefrom containing quantity narcotic, therein an to-wit: envelope marihuana, indica, also and also known known cannabis americana, Krupa did also then cannabis and said Gene handle and permit and there and allow John Pateakos to said *4 possession cigarettes have in Pateakos con- of said John taining being then and marihuana, the said John Pateakos employ Krupa, there in all of which wilful said Gene and Krupa unlawful acts and course of conduct said Gene to, thereby, there, manifestly as aforesaid did then and tend encourage, and did and to cause contribute the said John becoming remaining person Pateakos and such a as de- Welfare and Institutions Section 700 of said scribed .said twenty-one years age A who person to-wit: under town, any any or ordinance violates law of this State contrary city, county, defining of this crime State form, force and effect of Statute in such case made against provided, peace dignity the State California.” charges It will noted that the second count be appellant violated section 702 of the Welfare and Institutions in that induced the minor to do an tended Code he act which cause, caused, The the minor to become a violator. law alleged law, information, minor’s violation of as in the “obtain” marihuana from pocket appel- of a coat in room, lant’s transport” to “remove and the marihuana thus obtained. attorney-general,
The originally his brief as filed in support judgment, argued the two offenses not necessarily because, were consistently identical with the information, the marihuana referred to in count.one have been the same marihuana referred to count two. a letter filed, however, written after this brief was re quested that portion of his brief be stricken and disre garded. attorney-general (and now concedes the con cession is in facts) accord with the counts in the both amended information relate to incident, is, the same obtaining the minor Krupa’s pocket marihuana from coat and carrying person his until he apprehended. Among other things, the letter states: “Count Two as opinion amended in our is not substantially than different Count One. There is additional language used Two Count relating possession amended which it appear would implied allegations in the of Count One.” Thus it is now only admitted that possession minor marihuana involved either count was the involved pocket coat incident described detail in count two. This is of importance. considerable It has been in prosecu held tions for violations of liquor only laws that where the possession shown is that.incident transporting liquor, and it does not appear that there prior subsequent was a possession, the possession transportation may not be treated offenses. Clemett, Cal. 681]; P. In re Chaus, [280 92 Cal.App. P. 422]; People v. Buchanan, 106 Cal.App.Supp.
597
note 74
See
States,
F.2d 60.
United
7
50]; Schroeder v.
admittedly
there
contra.) Since
citing
411,
also cases
A.L.R.
pocket
in the coat
except that involved
here
possession
was no
in part
based
that count
incident, it cannot be held
is, on a
minor, that
by the
of law
on a different violation
to the unlawful
not
incident
unlawful
one.
count
transportation which is
basis of
doctrine
applicable to the
of the law
The statements
respects
clear, and in
by no means
some
jeopardy are
double
for traditional statements
(See, generally,
inconsistent.
(9th ed.) p. 776; 1 Whart
rule, Bishop’s
1
Law
Criminal
2
535, 394;
Freeman
(12th ed.) p.
on’s
Law
§
Criminal
955, §97;
650;
p.
7
Judgments (5th ed.) p. 1370,
Cal.Jur.
§
Supreme
As
53, 380.)
15
stated
p.
Am.Jur.
§
decisions, the rule is
state, in
more recent
Court of this
its
they
offenses
of two
when
that a defendant
be convicted
necessarily
and one is not
necessary
in their
elements
differ
453
Craig, 17 Cal.2d
(People
the other.
v.
included within
Warren, 16
103
P.2d
403]; People
P.2d
v.
Cal.2d
[104
[110
909]; Peo
Herbert, 6
P.2d
1024]; People v.
Cal.2d 541 [58
Day,
1161]; People v.
5
649
ple
Coltrin,
v.
Cal.2d
[55
is,
offenses are
250].)
although
That
P.
Cal.
[248
other, the
necessarily
included
same,
if one is
tests,
all
applies. Under
guaranty against
jeopardy
double
recognized.
1023,
of included offenses is
Section
the doctrine
or
the defendant
is convicted
“When
provides:
Penal Code
in
an
placed
jeopardy
acquitted, or has been once
conviction, acquittal,
jeop
information,
dictment
for the
indictment or information
is a
to another
ardy
bar
attempt
an
to commit
former,
or for
offense
therein, of
necessarily included
same,
an offense
for
indictment
under that
might
been convicted
which he
have
every
held that
(Italics ours.) Thus it is
or information.”
robbery.
mayhem, rape
battery
assault,
includes an
do
1006, 92 Am.
192, 197
P.
(People McDaniels, 137
v.
Cal.
[69
People
Defoor,
v.
Cal.
St.Rep.
578];
59 L.R.A.
manslaughter.
(People v.
642].) Murder includes
P.
29].)
Am.St.Rep.
Ny
Chung,
complished without If, in com necessarily the latter offense. included must statute, mission the offender of acts denounced necessarily included always another, offense is violate the one 11714, In the section other. case herein a violation of inevitably involves Safety Code, necessarily Health and Institutions 702, a violation section Welfare and Code. It is of section impossible person for a to commit a violation committing Safety of the Health without Code the Welfare misdemeanor denounced section unlawfully minor Institutions The-person Code. who uses a transport minor has induced the necessarily a narcotic subject to do an person act which renders the minor a 700, is, person section Code, and Institutions Welfare (Welf. Inst. who has violated law the state & §11160), under section this constitutes an offense part the minor person induced who has thus to violate the law. repeat, Safety Code,
To section cannot 11714, Health 702, Wel- offending against violated without also section fare and regard for the incident Having Institutions Code. (cid:127) based, forth admittedly which both as set counts are an prove required were the same facts two, exactly count count under a crime one as to establish under count offense necessary charge was felony Every element of the two. charge. of the misdemeanor indispensable to a conviction with- 11714 cannot be violated it is true that section While re- apparent, it is against section offending out also person A urges, not true. spondent that the converse is of a delinquency violate that is contribute to lawa by causing minor to become minor, than such otherwise dealing with violator, by causing him to violate a law of section subject' another than narcotics. If a violation always (as a violation involved a violation of section 11714 702) the offenses always involves a violation § § involve would be identical the sense that neither would have But, as we necessary element not for the other. of double above, principle said the cases are clear that necessarily jeopardy included applies where one offense is other, they It is well as where are identical. may be nature of included the included offense offenses that accomplishing committed without the inclusive offense. case, In the instant the essence of both offenses against appellant was the contrib commission acts which uted or tended delinquency of minor. contribute *7 necessary It is not to establish an offense under section 702 that minor actually the been or cor should have debauched rupted. 488].) (People Kinser, v. Cal.App. 778 [279 is proof Nor such sec necessary to constitute the crime under tion contributing 11714. Under section 702 the offense of delinquency Likewise, of minor misdemeanor. some a ais of provisions dealing other violations the code narcotics (See Code, 11710- are misdemeanors. Health and Saf. §§ 11716.) un But under section 11714 minor is used where a lawfully sell, person to transport, carry, any narcotic, etc. using the guilty felony. thus minor is of Though a ex pressed, apparent increasing reason for grade of crime prevails above that which generally as to narcotic is offenses tendency of the act section denounced 11714 to con delinquency tribute to the minor. Viewed in 702, contributing relation to section delinquency where to the a using unlawfully of minor takes the of the minor form transport narcotics, subject prosecution the offender is felony carrying which under section creates a a heavier than penalty However, section 702. person accused subject not also be penalty. should misdemeanor He is prosecution liable to section, under either but conviction acquittal or of an offense under one bars under the other. Where the State instead of prosecuting first for the offense which carries the heavier penalty, prosecutes for the offense lighter penalty, carries the or accepts plea guilty offense, right is without thereafter prosecute for the offense penalty. which carries heavier This thoroughly follows from the settled principle that acquittal conviction or of an prosecu included offense bars tion for greater (People offense. McDaniels, supra.) v.
By way
illustration,
robbery
degree
is of the first
perpetrated by
torture or
person
danger-
armed with a
or deadly
ous
weapon.
(Pen. Code, 211a.)
does not
This
§
mean that
robbery
where the
is thus committed the defendant
may
punished
robbery
degree
of the first
and for
both
robbery of the
degree,
second
he
offense would
com-
have
mitted had he acted
fact,
otherwise than he
is,
did
if he
accomplished
had
the crime without torture or
use
such
weapon.
present
So
case the defendant
not be
convicted of
felony
both a
and a misdemeanor on the basis of
the same incident
if
because
he had contributed to
delin-
quency of the minor
than
otherwise
he did in fact
could
he
been prosecuted
have
for a
only.
misdemeanor
principle
recognized
included offenses
rule,
to above,
every
referred
battery
assault,
includes an
mayhem, rape
robbery.
do
(People McDaniels,
v.
supra;
People Defoor,
v.
supra.) We have heretofore
referred to
arising
cases
liquor
under
laws which it has been held that
involved in
transportation
liquor
prosecuted
not be
after conviction
acquittal
charges
transportation.
Clemett,
supra;
Chaus,
In re
supra; People v. Buchanan, supra; Schroeder v. United
States, supra.)
In People
Lopez,
As a defendant may they offenses differ their he convicted two when necessary necessarily elements and one is included within Craig, People (People supra; Warren, supra; v. v. other. supra; People Herbert, People Coltrin, supra.) v. v. Thus Coltrin, supra, separate v. held that non two are inclusive offenses committed where the victim dies of an illegal necessarily abortion. Neither offense involves the com necessarily mission of the other. Abortion does not involve victim, may the death and murder be committed other perpetration illegal than in wise of an abortion. More over, wrongdoer where death an abortion results from wrongs. accomplished put has He has end to embryo, illegal operation. well as to the victim of the But a violation necessarily of section 11714 constitutes violation of section 702. Statutory rape arising
. and incest out same act have separate been held to (People constitute noninclusive crimes. McCollum, Cal.App. 432].) requires P.2d Each proof of an element not other, incest, the pro essential to relationship, rape, hibited consent, want of actual or construc tive. Either be committed without the other. Where the single offender both means act his commits offenses of a doubly wrong. for both punished conduct is He should he crimes, although they single from But a violation arise act. violating sec accomplished section 11714 cannot he without tion 702. driving
Death from another illus resulting reckless affords Herbert, tration of noninclusive offenses. from reck 909].) death ensues Cal.2d 541 Where manslaughter complete. But driving the offense of less through than automobile manslaughter arise otherwise *9 602
injury and death. Conversely the offense of driving reckless is complete although there is no injury person to or property.
In People Day, v. 199 78 250], question Cal. P. de [248 cided by was that or likely assault means produce force great bodily injury (Pen. Code, 245), and the crime de § by nounced section 244, separate, Penal were nonin clusive offenses. provides: person Section 244 “Every who willfully maliciously throws, or places or to be causes placed thrown, or upon person another, any vitriol, acid, nature, corrosive or caustic chemical of in with the injure tent disfigure body or person, flesh of such punishable by prison is imprisonment not the state less ” than years. one nor apparent more than fourteen that It by likely great an produce bodily assault means or force injury could occur other force or than vitriol, means corro acid, or caustic But separate, sive chemical. to establish the opinion noninelusive of the two found character offenses necessary it that there be violation demonstrate could inevitably committing 244 without an assault means section likely produce bodily injury. the court great or force This 244 by holding did crime under would be ac section vitriol, acid, although caustic complished corrosive strength quantity weak in thrown was small in chemical so great bodily injury. Illus incapable producing be indefinitely. multiplied trations could Stangler, 18 People v. Cal.2d The decisions [117 Bevans, 19 P.2d Cal.App.2d v. P.2d [65 321] In 92], these conclusions. are not inconsistent with separate counts charged Stangler case defendant 288, Penal rape of section Code statutory and violation 14), a child (lewd upon body of under and lascivious acts violating acquitted He upon the incident. based same rape. 288, He contended but convicted of section of violation acquittal inconsistent verdicts were rape. Statu was, therefore, acquittal 288, inevitably a violation of section tory involve does rape be committed section must offense under that 288, for the fourteen, whereas age body child under under female is statutory rape perpetrated in this confusing language Although some there is eighteen. to overthrow purport court did not case, that the it is clear Col People v. in such eases set forth extenso the law as Day, People v. Herbert, supra, People v. trin, supra; (As supra. generally, to effect of inconsistent verdicts see 657; 339; ; 43 Harv.L.Rev. 28 Mich.L.Rev. 14 Cal.L.Rev. 336 208.) pointed 10 So.Cal.L.Rev. should also he out it appears People Slang- from an examination of the record v. that, ier insofar as the information violation of sec- tion it not based on the rape proper, pre- but on acts it, which, held, may ceding has been constitute Jameson, Cal.App. 935]; offense. People McAfee, 839].) 82 Cal.App. case, supra, the Bevans convicted on defendant was counts, charging contributing delinquency *10 minor, a pointed the other violation of section 288. The court proved that one act was would not come under the out which provisions 288, Code, “upon Penal it not or of section as was any part child, the or body, or member thereof” juvenile clearly denounced the court law. but which adequate to all It has been that no rule of thumb is said unjust cases; single reach results that test absurd (24 562; 22 particular cases. Minn.L.Rev. C.J.S. offense, 414.) type notions Regard should be had to defining fairness, purpose and the of the statute the crime 171.) (18 it In the herein is involved, Cal.L.Rev. case etc. not requires that the defendant should that fairness obvious for he did. punished twice what be that holding of this is defendant that effect It is true offense, violation for the more serious escapes punishment felony, suffers Safety a 11714, Health and section an for offense under punishment prescribed only lighter Code, a misdemeanor. Institutions 702, Welfare and law. not, necessarily, show a weakness result does This for twice put jeopardy man shall be that no doctrine The prin- fundamental upon is based sound offense the same federal and state recognized by both are ciples, be, any there case, if present fault in the Constitutions. the discretion adopted. It within procedure in the lies for defendant prosecute enforcement authorities of the law frame They elected felony or the misdemeanor. either the This offenses. identical charging the two information an procedure adopt the defendant for possible it made did. record shows that the out pointed also It should Judgment time. the same at made counts was both plea on pronounced plea guilty not to the second count plea guilty defendant had his of not after made
until court, to the first count. The jeopardy therefore, pro- double judgment knowing nounced count in- defendant rely felony charge. judgment tended to on that in bar of the pertinent An examination code indicates that sections court, trial instead accepting plea to count pronouncing judgment thereon, it two, and had desired very higher offense, likely hold for the defendant could have count, plea, dismissed the after and have second even refused judgment 1021 of the Penal enter thereon. Section Code provides: formerly acquitted “If on the defendant was ground of variance between the indictment or information proof, or the indictment or dismissed information was objection an substance, to its form or order to hold higher judgment offense, without a a defendant for acquittal, acquittal offense(Italics is not same added.) recognizes right
The above section to dismiss a court charge higher in order to offense. hold the defendant for a provided made dismissal must be before plea. It has been held that dismissal made to hold for a higher impaneled sworn, a jury offense after has been is, jeopardy attached, subsequent after has will bar charge higher offense which dismissed Chung, Ny included. Sam Cal. 331; Hunckeler, Am.St.Rep. 29]; People 48 Cal. *11 Horowitz, 131 953; see, also, People 7 944, 949, v. Cal.Jur. 874].) it does not follow Cal.App. Supp. 791 But [19 trial, to where the defendant not submitted himself has the charging guilty to the count plea but has offered a of lighter right that the court is to dismiss offense, without higher offense. in to hold defendant for the count order the Section 1387, are also sections 1385 and Penal Code. There ‘1 motion or may, either of its provides: 1385 court own The in attorney, upon application the of the district further or indictment to be dismissed. justice, order an action ance of in an order be forth reasons of the must set The dismissal added.) By (Italics section upon entered the minutes.” not a bar order for dismissal is provided it 1387 the Smith, 143 Cal. felony. v. [77 if the offense 829]; P. Brown, Cal.App. 449]; People P. 442].) Saenz, Cal.App. People justices’ section, As to specific courts there is a Code, reject permits judge Penal a plea which to the greater. lesser to the offense order hold the defendant for provides in part pleads “. . . If defendant as follows: the guilty, may, entering the plea pronounc- court before such ing judgment, gravity examine to of witnesses ascertain the the offense it the committed; appear and if court that a higher offense the has been committed than offense complaint, may the the court com- order the defendant to be mitted bail, any or admitted to indictment answer which against grand jury, be found him informa- attorney.” tion which filed district If the Penal sections 1385 and 1387 of referred above, superior are not to enable the court enough broad réject plea of to the lesser offense order greater, hold the defendant for the then the matter calls for legislative rectification. appeals denying from the motions for arrest the orders judgment stay judgment are pronouncement and to judgment denying order motion for
dismissed. The a new trial are reversed.
Ward, J., concurred. First, upon following grounds:
KNIGHT, J. I dissent only my opinion of the is based reversal conviction record, portions on a of material but misconstruction legal line with the established also on theories which are oui of dealing decisions numerous state as declared law this Secondly, it jeopardy. will be question of double entirely the as- factually upon the reversal rests noted in- the amended information sumption that both counts assumption this is based but identical act and that volved attorney by the letter single sentence written filed, after briefs were general and submitted this court interprets a concession majority opinion to be in- information counts part that both letter, consist- only one identical act. But when volve whole, light it ing pages, is read as does written, apparent purpose becomes which it was majority misinterpreted purport that the opinion has *12 In any event, record itself must single sentence. the 606 appeal, of and will here the determination the as
control demonstrated, assumption upon the factual which inafter be negatived majority opinion only clearly the founded is allegations the infor by the second count of amended the by taken directly contrary position to the mation, but it is prosecution throughout opposing the trial of the case and judgment; also appellant’s trial and arrest of motions new deny contrary by the trial court to the conclusion reached directly contrary to the Moreover, ing these motions. it is testifying at position by appellant taken himself while 1041 Thirdly, the trial in his as witness own behalf. jeopardy plea that a of once of the Penal Code declares only when an issue law raises an issue of fact. becomes Wilkison, Cal.App. (People v. undisputed. the facts are Conson, Cal.App. ; People P. 1067] himself treated the 799].) appellant Here at the trial fact, it was submitted disputed issue issue pursuant instructions jury determination as such against appellant by jury proposed appellant; found shown, the issue, hereinafter that contested and as will jury’s con supports himself testimony of the defendant any con give However, majority opinion fails clusion. aspect the ease. sideration to this itself, circumstances facts and Turning record they are shown appellant leading up to arrest of the verdict view prosecution, which the evidence of the time of trial true, At follows: must be taken as are as musician, old, a years Krupa, appellant, Gene in night played proprietor and leader of a band Marijuana drums. played the Appellant theatres. clubs and transporting, possession, growing, plant, is a narcotic separate crimi- constitute selling giving away of which 7, Health IV, chap. div. (See arts. I and nal offenses. in the form Code.) dried and smoked plant & Saf. The unpredict- deeply, causes inhaled cigarettes, and when If time. being to distort results, one its effects able without “play him to faster it will used cause a musician appellant’s time At doing it.” feeling effects of at a theatre engagement arrest, filling his band was ho- leading at Francisco, staying he was San by his man- occupied room to his was adjoining tels. two rooms. door between connecting ager, being there *13 opening engagement in Prior to the his San Francisco he Angeles, filled one in Los and doing boy while so hired man, John Pateakos as property named valet and whose chief duty clothing, was to take care of appellant’s particularly wore; brought boy and suits he he to San Francisco night 18, 1943, agents him. On the of January with three from the federal of narcotics, bureau named Guibbini, Grady Polcuch, been having and informed that appellant was possession marijuana cigarettes, called at appellant’s dressing room the theatre he to in- playing, was terview him regarding the they information had received. present beginning interview, Pateakos was of the but at. agents requested leave room, him. to which he did. identifying After agents, they themselves federal narcotic appellant marijuana asked he if had person on his room, in his him any. and he denied having They they told had been quantity marijuana informed did he have a possession, in his and he replied that was nothing there to They the information. they then him if might asked search dressing room, his “go and he told them to ahead.” While they doing appellant were so Guibbini asked if he had ever marijuana, appellant used and time, stated he had at one 10 years ago, but lately about he had had nothing to do it. on, with While the search going appellant was per- asked go to leave room mission to out and wash. He was al- so, lowed do but soon as he left Guibbini followed him appellant way he observed up and half about the stairs lead- ing to the second floor engaged earnest conversation with Pateakos, separated them, Guibbini brought and appellant room, dressing back to his questioned. where was further he thereupon phone Guibbini went to a and instructed the room at the hotel appellant staying clerk where allow no except appellant one enter the room. latter’s Guibbini proceeded hotel, leaving then to the with appellant. Polcuch got leading As Guibbini out of the at hall elevator appellant’s room he saw waiting Pateakos to enter the ele- brought vator. He Pateakos back the room adjoining appellant’s, occupied hand, manager who present, there searching Pateakos found his pocket envelopes, containing marijuana two one cigarettes containing the other ones, whole one-half of partially Shortly thereafter, smoked. Grady Polcuch and arrived appellant, with and Polcuch and Guibbini him took room, fragments
to his where the officers found some of mari- juana Appellant in a writing drawer of a desk. denied hav- cigarettes frag- ing anything marijuana to do or the room, then adjoining found. He ments taken back appellant’s room. re- was taken to Pateakos Pateakos explanation his posses- fused then to make a statement marijuana cigarettes. having them sion He admitted mari- pocket, knowing anything in his but about he denied juana. appellant then room He was returned where marijuana boy ciga- if the was, appellant stated had the (appellant’s); him, worry it was his and not his rettes then took anything agents not have to with it. The did do office, statement, ap- to their he made Pateakos day. following placed under pellant was arrest *14 against the appeared appellant at Pateakos as witness shortly examination, disappeared, but afterwards preliminary the testi- at the The of and was unavailable trial. substance given preliminary examination mony by him the was at in years age, home New He and his was follows: employed at the Pala- Bedford, Massachusetts. He had been employed him his Hollywood, appellant at where dium “carry” Part his duties to property man. were valet him at his along,” appellant’s “clothes and “assist all at the thea- leaving dressing room appellant’s After room.” agents, appellant at time of the visit of the federal the tre way up stairs; and him half the and overtook about came out in envelope get him to an go told to his room appellant he ran to the request to this pocket. coat obedience his key get appel- to the clerk’s office to the hotel and went supposed give out room, they not but was told were lant’s let hop” knew, who then he key. He went a “bell from a envelope him room, got he where appellant’s into The enve- in the closet. It appellant’s coat. pocket marijuana cigarettes. After contained lope open, and in room day while room he recalled that leaving the noticed open and he had writing desk was drawer he told drawer, in marijuana cigarettes so half and a something returned to forgotten boy he had the bell placed cigarettes half took these two and room, he the At eleva- him. and took them with envelope in them an manager’s him to band Guibbini, took who met tor he containing envelopes the two and found him, room, searched clothing he wore. in the cigarettes marijuana testimony. bellboy testi- corroborated Pateakos’ He The into room at indicated fied that he let Pateakos the time envelope him remove the from the clothes saw put pocket; that he let room closet and his him into the stated in the hall he had for- second time when Pateakos gotten something; another that he Pateakos take enve- saw lope writing desk; from that when let in the Pateakos per- room clerk he was unaware of the instructions to the appellant mit no one but to enter his room. Safety 11712 of
Section the Health and Code deals the possession any person con- provides narcotics. It possession having any victed punishable narcotic is imprisonment county jail or prison. the state Section transportation same code deals act of with the provides any narcotics. person convicted of trans- giving porting, any or selling, away punishable narcotics by imprisonment county jail prison. The state transportation element of the former sec- included tion, nor is the element of included the latter. They constitute offenses under different sections. Section 11714 of said every person code declares who hires, employs or uses in unlawfully transporting minor or carrying any is punishable by narcotic imprisonment prison. the state This section makes of possession. no mention juvenile law has been a part made Welfare Institutions among and section 702 thereof provides things other person who commits act which causes tends cause or encourage a minor come within the provisions juvenile *15 as specified law in section 700 guilty thereof is of a misdemeanor, and among speci- the acts fied in section 700 is any the violation of of law state. this authority
Under the of provisions of the two statutes above' mentioned in and of developed view the facts at the preliminary examination, the district on attorney February 2, 1943, against filed an information the appellant charging separate him in having counts with violated Health both the Safety and juvenile Code and the The law. first count charged appellant having with section violated 11714 of the Safety Health and Code, to wit, with and having employed used “in Pateakos unlawfully transporting carrying and a quantity cigarettes containing a By narcotic.” the sec- having acts committed two charged with he was
ond count (1) by inducing Pateakos juvenile law: in violation Patéateos’, room; his, quantity of narcotics keep” a “to and allowing to “handle Pateakos (2) by and permitting and cigarettes Pateakos” John in the said have cause alleged did containing marijuana, all of which it was “becoming remain- Pateakos and contribute to said ju- in section 700 ing person a as is described” such any wit, a “who violates law law, person venile to and filed the information Appellant moved dismiss state.” ruling any thereto, April 19, 1943, before demurrer but demurrer, plea on his he entered was made motion or guilty probation. and asked second count Hay until cause from time time was then continued filed an amended attorney on which date the district changed, originally information. 1 as filed was Count original charge count but count was. The made keep” narcotics in his Pateakos appellant induced “to count charged room in the amended omitted, was and was (1) Pateakos to “ob- appellant persuaded induced and appel- pocket tain from the transport” and remove narcotics; containing quantity of lant’s coat an envelope (2) Pateakos “to handle permitted that he and allowed containing cigarettes of Pateakos possession” have marijuana, encourage all and cause and con- of which did becoming person such as is described tribute Pateakos juvenile wit, law, 700 of a minor who violates words, law of this as amended state. other count charged having Pateakos to vio- appellant was induced Safety late two sections of the Health (§ ; (2) wit, (1) possession 11712) and trans- of narcotics day filing porting (§ 117Í3). following On narcotics arraigned again (cid:127)of and the appellant information originally minutes of the court entered recited the follow- ing: defendant, Krupa, “Thereupon, pleads Gene in- guilty amended is not count one formation, holding; and not guilty reason of a former information”; where- to count two of the amended (It interposed should appellant probation. a motion for stated, however, transcript be here clerk’s that after the cor- pro filed herein the trial a nunc tunc order court made recting plea the minutes so that as corrected the once requirements legally sufficient to meet the jeopardy *16 4.) day Pen. same that appellant subd. On the § probation denied, for asked his motion he was sen- was and jail ninety days to in the imprisonment county tenced and $500; 29, 1943, brought fined thereafter on to and June he was jury before trial on the count. second testimony disappearance On account of Pateakos given by read preliminary him at the examination was to jury. Appellant behalf, in his became witness own in to contradiction of he had made the federal the denials agents night he admitted that all January 18th marijuana his cigarettes which had been taken from belonged clothes In this he testified that to him. connection brought Angeles he them to from Los San Francisco clothing of, to required was take care Pateakos coming cigarettes that he had after part smoked of one of the to San Francisco. He further admitted that while San cigarettes Francisco kept were the clothes Pateakos required of, was to take care and that Pateakos “handled every day clothes denied, He however, the week.” that had he night question asked Pateakos on the to remove pockets them from the of his clothes. He he why was asked pleaded to guilty he charged count wherein had been having so, reply done and in say on to he went that he was by attorney advised against his the “rule” California have a minor around where there were mari- juana cigarettes, his, and that had Pateakos taken care of room, appellant’s, laundry, his and his In clothes. other words, purport testimony of his pleaded was that he had guilty portion charge to that had he allowed Pateakos to “handle” cigarettes, and have guilty therein, but he was not of the other act wit, that had boy transport carry induced the cigarettes. that state of the record the issue of double jeopardy was submitted to the jury determination of the pursuant instructions, to two one of which proposed appellant, as follows: “It from appears the evidence in this Krupa pleaded case Gene day on the 19th May, Superior charge Court of con- tributing delinquency Pateakos, minor, of John com- by allowing mitted said John Pateakos have handle the marijuana cigarettes involved in now before you persuading said John Pateakos to obtain and *17 a cigarettes pocket from the of said transport remove and information therefore, you present the if find coat, and jeopardy in defendant is twice charges the offense the same it the before acquittal.” Upon to an evidence and entitled guilty, finding appellant a which jury returned verdict the act that implied finding it the the necessarily carried with the to handle allowing Pateakos and have marijuana cigarettes not act involved the same charge inducing carry cigar- transport Pateakos to and as charge trial; then on ettes, appellant on which testimony legally stated, appellant himself is sufficient jury. support conclusion reached assuming, however, court, Even that this in the exercise reviewing disregard powérs, right its has the con it, clusion reached and the jury supporting evidence may, contrary law, thereto and as matter of hold a handling, transportation, possession carrying consti judgment my one transaction, opinion tuted in should affirmed, regardless may be nevertheless be for of whatever jurisdictions, in other it is the well settled the rule law not plea jeopardy good “that once in ... a state offense, in is for both prosecution unless second the same fact, for first prosecution law and in as that which words, (7 955.) In other instituted.” Cal.Jur. estab may a on lished rule is defendant be convicted two separate arising out of same transaction more offenses count the offenses separate each is stated in a and when where one not the other. their elements and included differ offenses, distinguished identity The real test is the they from arise. identity of the transaction from People v. 29]; 20 306 P.2d Hoyt, v. Cal.2d [125 Bevans, 523]; People v. Venable, Cal.App.2d 25 73 P.2d [76 5 92]; Coltrin, Cal.2d Cal.App.2d 288 P.2d [65 Warren, 16 1161]; People v. Cal.2d P.2d [104 Zimmer, Cal.App.2d P.2d 1024]; People Jurispru in 15 American same doctrine is stated 923].) The 1 single may two ‘A act constitute at 63 as follows: page dence offenses, person and a separate more distinct Prosecutions punished for both. therewith be convicted same transac based person separate offenses a there are distinct jeopardy tion do not involve double If other. not included elements in offensewhich are single more wherein transaction constitutes two or offenses necessarily greater the lesser not offense is involved necessary and the prosecution facts to convict on the second necessarily first, would have convicted on the then the on, first is not a bar to Later the second.” the same at page 65, jeopardy volume it “A putting is said: for one act is bar to. prosecution separate no for a and dis- merely tinct act they closely because in point are so connected impossible relating time it is the evidence them on the trial for the one of them first had. Conse- quently, plea of former jeopardy will not be sustained where appears that in one transaction distinct two crimes were again committed.” page single And 67 it is “A stated: act be an against statutes; offense if one statute proof necessitates of different circumstance or element from requires, which the other an acquittal or conviction under either statute exempt does not prosecu- the defendant from *18 punishment tion and the . Undoubtedly, under other. . . it is power within the legislature to create of- two more by fenses which single act, be committed a each of which punishable by itself. A acquittal conviction or in such case under either statute would a be no bar to under conviction other, the for the accused not in jeopardy be twice for would offense, only but once in jeopardy for each offense.” In applying the foregoing rules it has been state held an acquittal that rape on charge a does not a exclude incest, conviction for they since were not identical offenses (People McCollum, v. 116 Cal.App. 432].) 55 It P.2d [2 also has been held that the conviction of con misdemeanors sisting in the possession unlawful and manufacture of intoxi cating liquor, does not jeopardy prose constitute former in a possession for cution still, notwithstanding a the that fact all of the offenses were committed at the place. same time and (People v. Painetti, People 210 965].) Cal. 476 P. In [292 Bevans, supra, v. appellant separate counts with a violation of section 288 of the Penal Code and with juvenile law, violation of the on court and he was convicted identical, both counts. He contended that the offenses were but the otherwise, court held saying part: ”... of charged, time, fenses while identical in not the same were either in law or fact. conviction of the one would not People be a bar to the In conviction the other.” Moon, Cal.App.2d that a 384], it held robbery grand for theft two prosecution arising consisting offenses different elements but from the charged in separate acts were counts infor- same mation, robbery charging the dismissal of the count not did grand a theft. upon conviction count And bar second Sheasbey, Cal.App. 836], it was robbery possess not same kidnapping held do punished although relating and both elements transaction. same present case
In the the elements the two offenses de- by which form the nounced statutes basis essentially were different. two counts order establish count, juvenile under the second which was guilt based law, pleaded guilty, all appellant to which that was court necessary prove the minor was that violated section Safety by having possession nar- of the Health and Code cotics, appellant act contributed such of vio- minor; by guilt lation whereas in order to under establish Safety count, based on the Health and first which was jury, appellant was convicted prove mere more than essential for minor; required it was of narcotics estab- appellant element induced minor lish additional carry transport the narcotics. conclusion, therefore, that under the doctrine of my under cited the conviction the second the authorities above first, ac- did bar conviction under count judgment be affirmed. cordingly the should Supreme hearing by Court Respondent’s petition for hearing. Shenk, J., voted for 26, 1944. was denied June *19 May 29, Dist., Div. One. Second 1944.] No. 14479. [Civ. CALIFORNIA, OF EXAMINERS DENTAL BOARD OF JAMESON, Appellant. K. v. E. Respondent,