Opinion
Rehearing Denied April 21, 1928.
Hearing Granted by Supreme Court May 21, 1928.
Appeal from Superior Court, San Joaquin County; George F. Buck, Judge.
George Ball was convicted of taking an automobile without the owner’s consent, and he appeals. Affirmed.
COUNSEL
George Stahlman and Sydney C. Bennett, both of Stockton, for appellant.
U.S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for respondent.
OPINION
BARTLETT, Justice pro tem.
This is an appeal from a judgment of the superior court of San Joaquin county, Cal., 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, willfully, 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, to wit, 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. California 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 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."
The information in question charges defendant, not with the acts set forth in section 499b of the Penal Code, taking an automobile without the permission of the owner for the purpose of temporarily using or operating, in which instance, the crime is a misdemeanor, but charges defendant with a felony because of a willful, unlawful, and felonious taking of the described automobile for the purpose of temporarily depriving the owner of the possession of the vehicle, also alleging that, when defendant took the automobile, he did not have the permission or consent of the owner to so take the same. The information is silent as to whether or not the defendant drove the machine after taking it, and it is because of its failure to contain such an allegation that defendant claims that no offense is stated therein, which constitutes a felony under the laws of California.
Section 146 of the State Automobile Act, read as a whole, will not justify the construction defendant seeks to place upon the words "drive" and "driving." Ordinarily, the words "take" and "drive" would not be synonymous. But, in the case of an automobile, it cannot be said that one can drive that species of vehicle without first taking possession of it, and the purpose of the act is to punish the depriving of the owner of his title or his possession of the automobile, though the intent to deprive may have been to deprive of possession for only temporary time. While perhaps not framed in as clear and concise English as could have been done, the language of the entire section manifests the intent of the legislators to prohibit an unlawful taking of possession from the owner of an automobile, when the purpose is to deprive the owner of possession either permanently or temporarily, and that intent it is the duty of the court to ascertain and enforce, if it can be ascertained that such was the intent of the legislators, as manifested from a consideration of the whole statute. The use of the words "taking or driving" used in the second sentence of the section, and the use of the words "unauthorized taking or driving" in the last sentence, prohibits any reasonable construction of the act that would declare that driving an automobile, taken into possession without the consent of an owner for the purpose of depriving the owner of its possession, even temporarily, is necessary and additional to a taking to constitute the felony established by the act.
The form of the commitment from the justice’s court does not appear from the record. No demurrer to the information was interposed at defendant’s arraignment, and no motion was made to set aside the information, on the ground that, before the filing thereof, the defendant had not been legally committed by a magistrate. All intendments and presumptions are in favor of the regularity of the proceedings in courts of general jurisdiction. Error will not be presumed, and it is incumbent on an appellant to produce a record affirmatively showing alleged errors. No such showing is made by the record presented in this case.
The judgment is affirmed.
We concur: HART, Acting P. J.; PLUMMER, J.