Opinion
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for appellant.
Russell E. Parsons, Los Angeles, for respondents.
FOX, Presiding Justice.
The only issue in this case is: may a husband and wife alone properly be charged with criminal conspiracy in this state?
The District Attorney filed an information charging the defendants in Court 1 with conspiracy (section 182, subds. 1 and 4, Penal Code) to violate section 26104(a), Corporations Code, and to commit grand theft. It was stipulated that the defendants were husband and wife. Defendants made a motion under 995 to vacate, set aside and dismiss the information as to Count 1 on the theory that since the defendants were the only persons involved in the asserted conspiracy and since they were husband and wife, they could not legally be charged with conspiracy under the decisions in this state. The trial court granted their motion and dismissed Count 1. The People have appealed.
Defendants were charged in Count 2 with the substantive offense of violating section 26104(a), Corporations Code, and in Count 3 with the substantive offense of grand theft (§ 487(1), Penal Code). Neither of these counts, however, is involved on this appeal.
This precise question was before the Supreme Court in People v. Miller, 82 Cal. 107, 22 P. 934. 82 Cal. on page 108, 22 P. on page 935, the court stated that the defendant's 'sole contention here is that the information does not accuse him of any offense, because a man and his wife, being in law but one person, no prosecution for a conspiracy can be maintained against them.
'That such was the rule of the common law we cannot doubt, and we find nothing in the Code or statutes of this state to indicate an intention of the legislature to change it.'
The court thereupon reversed the judgment of conviction and directed the court below to discharge appellant from prison.
This identical question was before the District Court of Appeal in People v. MacMullen, 134 Cal.App. 81, 24 P.2d 794. That court followed the Miller case and reversed the judgment of conviction. The court in the course of its opinion set forth the philosophy underlying this decision at some length. In order that the position of the court may be fully appreciated we quote the following from the opinion (134 Cal.App. pp. 82-84, 24 P.2d pp. 795-796):
'It is contended by the appellants that, as a husband and wife are in law regarded 'That the question thus presented may be better understood, it is undisputed that it is the law that on a charge of conspiracy, even though but one person is indicted, the statement of the offense in the indictment must show that two or more persons, even though the other person or persons are unknown, did in fact conspire together to commit the crime. Upon a trial for the offense, the evidence must show that at least two of the persons named in the charging part of the indictment committed the offense because the gist of the offense is the conspiracy. If these elements are not present then a conviction cannot be had. Section 182 of the Penal Code provides that, if two or more persons conspire to commit any crime (and the crime here charged is grand theft), they are guilty of a felony.
'In People v. Richards, 67 Cal. 412, 413, 7 P. 828, 829, 56 Am.Rep. 716, it is said: 'No one can dispute, or ever has disputed, that the offense cannot be committed by one alone, and it would seem that the husband and wife were one, in the sense that they could not conspire without the co-operation of another, at least.' It is further said in this case, citing from Wharton's Criminal Pleading and Practice: 'In an indictment for conspiracy less than two cannot possibly be joined; a wife and husband together not being sufficient. * * *'
'In People v. Miller, 82 Cal. 107, 22 P. 934, 935, a man and wife were charged with criminal conspiracy and convicted by the jury. On appeal to the Supreme Court, the sole contention was made that the information did not accuse the appellant of any crime because, a man and his wife being in law but one person, no prosecution for a conspiracy can be maintained against them. It was held: 'That such was the rule of the common law we cannot doubt, and we find nothing in the Code or the statutes of this state to indicate an intention of the legislature to change it.'
'In the case of Dawson v. United States, 10 F. (2d) 106, 107, decided by the United States Circuit Court of Appeals, Ninth Circuit, on January 18, 1926, in a case arising in the state of Idaho, a man and a woman, claiming to be husband and wife, were charged with conspiracy to violate the White Slave Act. * * * On a trial of the charge, evidence was admitted from which the jury could have found as a fact that the parties charged were husband and wife, and an instruction was offered on their behalf in the following language: "That if you find from the evidence that the defendants were man and wife during the period covered by the first count or charged in the indictment, and the evidence herein, you should find both defendants not guilty on that count. The charge is one of conspiracy to commit crime, and it is not legally possible for a wife so to conspire with her husband, nor a husband with his wife.' An exception was reversed, and error is assigned on the refusal of this request. * * * In 12 C.J. 543, it is said: 'It has been uniformly held that, as husband and wife are considered one in law, they cannot be guilty of a conspiracy.' In 2 Bishop on Criminal Law (9th Ed.) § 187, the law is thus stated: 'Husband and wife, being regarded in law as one person, cannot without other combination commit this offense. But, where there is another conspirator, a wife may be joined with her husband in the indictment.' * * * The common-law rule unquestionably supports defendants' contention; a rule so well established and so generally recognized by the modern authorities should not be judicially repealed. We think the requested instruction should have been given. * * *'
'The people concede that by force of the decision in the case of People v. Miller, supra, the appellants would be entitled to an acquittal, except that since the rendition of that decision the status of married women has undergone a great change; and, In People v. Little, 41 Cal.App.2d 797, p. 800, 107 P.2d 634, p. 636, the court noted that 'The Attorney-General concedes that a husband and wife cannot conspire together to commit a crime', citing the Miller and MacMullen cases. The foregoing statement from Little is quoted in People v. Keller, 165 Cal.App.2d 419, 424, 332 P.2d 174.
From the foregoing authorities it is quite apparent that the trial court ruled correctly in quashing and dismissing Count 1 of the information.
The People earnestly argue that the decision in the Miller case is out of harmony with current public policy in this state and that it should be overruled. They point out that in Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65, the Supreme Court overruled Peters v. Peters, 156 Cal. 32, 103 P.2d 219, 23 L.R.A.,N.S., 699, by holding that for an intentional tort resulting in personal injuries, one spouse may maintain an action against another in this state. This case only relates to an action between spouses 'for an intentional tort' committed by one upon the other. The Self case is no authority for overruling the Miller case. In MacMullen, the court pointed out that Miller 'has never been overruled, and until this is done we are bound to follow that decision. [Citations.]' We of course are in the same position. If a different principle of public policy is to be the law of this state, it will have to be determined and declared by the Supreme Court or the legislature.
The order is affirmed.
HERNDON and ROTH, JJ., concur.