People v. Venable

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[Crim. No. 3064. Second Appellate District, Division Two. February 15, 1938.]

THE PEOPLE, Respondent, v. DOUGLAS J. VENABLE, Appellant.

COUNSEL

William J. Clark for Appellant. [25 Cal. App. 2d 74]

U.S. Webb, Attorney-General, and Alberta Belford, Deputy Attorney-General, for Respondent.

OPINION

Wood, J.

Defendant was charged in the information with the crime of grand theft and in a second count with the crime of forgery. At a trial before the court without a jury he was found guilty on both counts. He prosecutes this appeal from the judgment.

[1] On the charge of grand theft it was proved that one M. Farman attempted to purchase an automobile from defendant for the total sum of $627. She delivered to him part of the purchase price in cash and later gave him a check for $432. The car was never delivered to her. On the count charging forgery it was established that at the time defendant received the check for $432 he executed and delivered a forged receipt for $627.

Defendant contends that the prosecution may not charge both grand theft and forgery under the circumstances of the case, arguing that the acts shown in evidence constituted a single transaction. There is no merit in the contention. [2] The test is the identity of the offenses as distinguished from the identity of the transactions from which they arise. A defendant may be convicted of two separate offenses arising out of the same transaction when each offense is stated in a separate count and when the two offenses differ in their necessary elements and one is not included within the other. (People v. Zimmer, 23 Cal. App. 2d 581 [73 PaCal.2d 923]; People v. Majors, 65 Cal. 138, 145 [3 P. 597, 52 Am. Rep. 295]; People v. Bentley, 77 Cal. 7, 9 [18 P. 799, 11 Am.St.Rep. 225]; People v. Ciulla, 44 Cal. App. 725, 726 [187 P. 49]; People v. Brannon, 70 Cal. App. 225, 228 [233 P. 88]; People v. Herbert, 6 Cal. 2d 541, 547 [58 PaCal.2d 909].)

The judgment is affirmed.

Crail, P. J., concurred.

McComb, J.,

Concurring.

I concur in the judgment. However, I do not believe the appeal is properly before this court. [25 Cal. App. 2d 75]