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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. BIGGS et al.†

Cr. 2921.

Decided: January 29, 1937

R. A. Newell and Hugh G. Maddox, both of Long Beach, for appellant. U. S. Webb, Atty. Gen., Paul D. McCormick, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Clarence S. Hunt, Deputy Dist. Atty., both of Los Angeles, for the People.

This appeal is from the judgment and order denying appellant's motion for a new trial after his conviction by a jury of three counts of grand theft and the finding that he had been twice previously convicted of a felony.

Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal.App. 657, 659, 266 P. 558), the facts in the instant case are:

Appellant and his codefendants staged a fake automobile accident in which appellant falsely claimed that, while he was walking on the street as a pedestrian, he was struck and injured by an automobile owned and operated by defendant Biggs. Thereafter appellant filed claims with three separate and distinct insurance companies and collected a sum of money in excess of $200 from each of them.

Appellant had previously been convicted in the state of Texas of felonies and as to each conviction had obtained from the Governor of the state of Texas a pardon. These two prior convictions were alleged in the information and the trial court permitted proof of them to be submitted to the jury.

Before the case was submitted to the jury, the trial court over objection permitted the district attorney to amend count 2 in the information by interlineation to conform to the proof as to (a) the date of the commission of the offense, and (b) the amount of money involved.

Appellant relies for reversal of the judgment on the following propositions:

First. There is no substantial corroboration of the testimony of his accomplices to show his participation in or connection with either of the crimes of which he was convicted.

Second. A prior conviction of a felony which has been unconditionally pardoned by the Governor may not be alleged and proven for the purpose of bringing defendant within the category of habitual criminals. Section 644, Penal Code, as amended by St.1935, p. 1699.

Third. The trial court committed prejudicial error in permitting the district attorney to amend count 2 of the information prior to the submission of the cause to the jury to conform to the proof that the offense was committed on a date different from the date originally alleged and that the sum of money involved was not the same as the amount specified in the original indictment.

Fourth. The trial court committed prejudicial error in refusing to give certain instructions requested by appellant.

As to appellant's first contention, we have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to furnish the necessary corroboration of the testimony of appellant's accomplices. We therefore refrain from further discussion of the evidence. Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399; Koeberle v. Hotchkiss 8 Cal.App.(2d) 634, 48 P.(2d) 104; Thatch v. Livingston, 13 Cal.App.(2d) 202, 56 P.(2d) 549.

Turning to appellant's second proposition, the question is novel in this state. From an examination of the authorities in other jurisdictions, we find that the cases are squarely in conflict as to the effect a pardon has upon a prior conviction when the conviction is sought to be used in a subsequent criminal proceeding for the purpose of enhancing the punishment. After a careful review of these conflicting opinions, we are satisfied this question should be answered in the negative, and the correct rule is that the fact that accused has been pardoned for his prior conviction does not exempt him from the increased punishment prescribed by section 644 of the Penal Code on a subsequent conviction. 16 Cor.Jur. 1342. Full and complete reasons for this view are to be found in the case of Carlesi v. New York, 233 U.S. 51, 56, 34 S.Ct. 576, 58 L.Ed. 843.

As to appellant's third proposition, the trial court may permit the amendment of an information at any stage of the proceedings, where, as in the instant case, the substantial rights of the defendant are not thereby prejudiced. Section 1008, Pen. Code.

Appellant's final contention will not be considered by us for the reason that he has wholly failed to observe the provision of section 3 of rule VIII of this court, which requires an appellant who claims error in the trial court's refusal to give requested instructions to print in full in his brief the refused instructions. (Section 3, rule VIII, Rules of the Supreme Court and District Courts of Appeal of the State of California.)

The judgment and order appealed from are and each is affirmed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.