Kuhn

The defendant, appellant herein, by an indictment in three counts, respectively, was charged with a wilful failure to file a state income tax return for each of the years 1960, 1959, and 1958, with intent to evade the tax imposed, i.e., violations of section 19406 of the Revenue and Taxation Code; was found guilty on Count 1 as charged, and of a lesser included offense on Counts 2 and 3, i.e., a violation of section 19401 of the Revenue and Taxation Code; moved for a new trial, which was denied; was sentenced to pay a fine of $5,000 on Count 1; was granted probation as to Counts 2 and 3, the imposition of sentence being suspended; and appeals from the judgment.

The defendant contends that section 19406 of the Revenue and Taxation Code, the violation of which is a felony, and section 19401 of that code, the violation of which is a misdemeanor, define the same offense; thus confer on prosecuting officials the right to choose whether an accused will be charged with a felony or a misdemeanor for the same offense ; for this reason constitute an infringement of the constitutional guarantee of equal protection of the law, an unconstitutional delegation of legislative authority, and a…