PEOPLE v. DUTTON

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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. DUTTON.†

Cr. 2928.

Decided: March 22, 1937

Morris Lavine, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Paul D. McCormick, Deputy Atty. Gen., for the People.

Defendant was charged with the violation of section 476a of the Penal Code after a prior conviction of a felony, to wit, forgery, in the state of Wisconsin.

Defendant pleaded guilty to the alleged offense, but denied the prior conviction on the ground that he had been pardoned by the Governor of Wisconsin. The court found on the trial of this last issue that defendant had theretofore been convicted of the felony alleged, whereupon judgment was then and there pronounced. The appeal is from the judgment, and, also, an attempted appeal is made from the “findings in the judgment that the defendant has suffered a prior conviction.” No appeal lies from the findings, and the attempted appeal therefrom is therefore dismissed.

The decisive question involved in the appeal is the effect of the pardon above referred to. Appellant relies chiefly upon the provision of the statute defining the operation and effect of pardons. Stats.1933, c. 945, p. 2476. There appears to be no conflict between this provision, section 1203 of the Penal Code (as amended by St.1935, p. 1706), and other provisions affecting the punishment for second offenders; moreover, it is well settled that where a judgment is pronounced for a certain offense and for a prior conviction of a felony, the punishment is not for the prior conviction but for the second offense. The authorities on the effect of a pardon are somewhat in conflict, but the conclusion reached in People v. Biggs (Cal.App.) 65 P.(2d) 75, 76, appears to be consistent with well–established rules of statutory construction; the court, in that case, held: “After a careful review of these conflicting opinions, we are satisfied this question [of pardon] 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.” Appellant in the instant case cites People v. Bowen, 43 Cal. 439, 13 Am.Rep. 148, wherein with respect to this subject the following quotation from 2 Blackstone, page 402, appears: “‘The effect of a pardon (under the rules of the common law) is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offense for which he obtains a pardon; it gives him a new credit and capacity.”’ The Legislature of this state evidently was less hopeful, for no provision appears in section 1203 of the Penal Code, nor, for example, in the Habitual Criminal Act (section 644, Pen.Code, as amended by St.1935, p. 1699), with reference to pardons where subsequent offenses are involved. Indeed, it requires no effort to reason that the Legislature was skeptical and not concerned with the influences that bring about pardons in the instances in which pardons are obtained, but, on the contrary, was concerned with the public welfare and the disposition of habitual criminals. The Legislature had the power to make the pardoned offenses an exception to the measure of punishment meted out to those convicted of multiple offenses; the court has no such power.

Judgment is affirmed.

DORAN, Justice.

We concur: HOUSER, P. J.; YORK, J.

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