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


Cr. 4756.

Decided: June 11, 1952

Sam Houston Allen, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

This is an appeal from the judgment in two actions.

Appellant was charged by information with the violation of section 501 of the Vehicle Code and in another information with the offense of issuing a check without sufficient funds in Count I and in Count II with the theft of an automobile.

The two causes were consolidated for trial by stipulation. Defendant was adjudged guilty by a jury of all three offenses.

It is contended on appeal that the court erred in refusing to give certain instructions relating to circumstantial evidence; that the evidence is insufficient to support the conviction; that there is a fatal variance between the allegations and the proof; and that the verdicts on all counts are contrary to the evidence and the law.

Briefly, the facts are that defendant gave a check as a down payment on the purchase of an automobile. The check was returned marked insufficient funds. It was given on March 16, 1951, but was dated 4–16–51. Defendant did not inform the salesman nor did the salesman notice the date on the check. But defendant had no account even on the date the check bore. The home address given by defendant at the time was a vacant lot.

At 2 a. m. on March 16th, defendant was arrested for ‘drunk driving’, following a collision. The prosecution followed.

There is no merit to appellant's contentions. That the evidence is sufficient there can be no question. As to the other contentions, they are highly technical. The instructions fully covered the issues and there was no variance in the proof.

The judgments are affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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