I dissent. I would reverse the order of the trial court as to count II and affirm the order as to count I, *455for the reasons expressed by Mr. Presiding Justice Fox in the opinion prepared by him for the District Court of Appeal in People v. Mickelson (Cal.App.) 26 Cal.Rptr. 152.
Appellant’s petition for a rehearing was denied May 14, 1963. McComb, J., was of the opinion that the petition should he granted.