Opinion
Hearing Granted by Supreme Court Oct. 18, 1934.
Proceedings on the petition of Charles H. Johnston and E. E. Pratt for a writ of habeas corpus.
Petitioners discharged from custody.
STEPHENS, P. J., dissenting.
COUNSEL
McGee & Robnett, Robert L. Collins, Erwin P. Werner, and Paul Friedman, all of Los Angeles, for petitioners.
Buron Fitts, Tracy Chatfield Becker, and A. H. Van Cott, all of Los Angeles, for respondent.
OPINION
CRAIG, Justice.
Application for writ of habeas corpus after acquittal of acts charged in all counts of an information except the acts alleged in the first count, charging conspiracy.
By an amended indictment filed in the superior court of Los Angeles county, petitioners were charged in several counts with having committed certain specified acts, to wit, selling certain corporate stock in nonconformity with the Corporate Securities Act (St. 1917, p. 673, as amended) of this state. By another count it was alleged that they combined, confederated, and conspired to violate the same provisions of said act, and that in furtherance of such conspiracy certain overt acts therein enumerated were committed, which overt acts were identical with, and mere repetition of, the crimes charged in the preceding counts. On a trial before a jury verdict was returned finding petitioners guilty of the charge last mentioned and not guilty of the offenses alleged in all other counts. From the judgments entered upon the verdict of conviction they appealed. A petition for a writ of habeas corpus was thereafter filed and is now before this court, praying that petitioners be discharged from custody, for the reason, among others, that said acquittals constitute a finding that none of the overt acts alleged in the count of the information charging conspiracy were committed, and hence in legal effect result in an acquittal of the crime charged in that count.
Respondent asserts that, because petitioners have appealed from the judgment entered upon their respective convictions, this court is without jurisdiction to consider the habeas corpus petition. The authorities cited in support of this contention are not in point. So far as the principles enunciated in them go, such decisions lead to the conclusion that jurisdiction exists in this court and perhaps in no other. Without discussing each of the cases cited in this behalf individually, it will suffice to say that none of them involves a writ of habeas corpus in a court to which the petitioner’s case had been appealed. In several instances it was declared that a trial court may not entertain a writ of habeas corpus where the petitioner’s case had been removed from its jurisdiction to a higher court. It is obvious that these rulings do not uphold respondent’s claim. Such a case is France v. Superior Court, 201 Cal. 122, 255 P. 815, 818, 52 A. L. R. 869, principally relied upon by respondent. In one case cited, In re Doyle, 26 Colo. 52, 55 P. 1080, the Supreme Court of that state held that, an appeal having been taken to the district court from the trial court, habeas corpus would not be given consideration by the Supreme Court. This was based upon the proposition, as quoted in the opinion of our Supreme Court in France v. Superior Court, supra: "Pursuant to a general rule of wide application, and upon which there is no conflict of authorities, it has been held that a court is without jurisdiction where it attempts by habeas corpus to interfere with the exercise by another court of jurisdiction theretofore acquired, whether such jurisdiction is acquired in another habeas corpus proceeding or on appeal, or otherwise, unless the prior jurisdiction has been terminated." In the instant proceeding the appeal has been taken to the District Court of Appeal. Jurisdiction is now here. We have no doubt of our authority and jurisdiction to pass upon this petition and to grant any relief to which petitioners may be entitled.
Respondent argues that, since in certain counts naming certain defendants as officers of the corporation in question one defendant is referred to not as an officer, this in some way which is not explained results in the overt acts charged in said counts being different from the overt acts alleged in the conspiracy count. The Corporate Securities Act makes no distinction of this character, and we think the argument is untenable.
This court has had occasion to pass upon the question which is decisive of this proceeding. In Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764, 765, we held, in a prosecution based on numerous counts of an indictment in which petitioners were charged with different acts of larceny and embezzlement, and where in a final count it was alleged that, in furtherance of a conspiracy, the defendants committed certain overt acts delineated as the same offenses whose commission was charged in the preceding counts, and the defendants were acquitted of the crimes charged in such preceding counts, that this constitutes a finding that none of the overt acts alleged in the conspiracy count were committed. Further, that the result of said acquittals was an acquittal on the charge of conspiracy. It is there said: "But here the conclusion cannot be escaped that since each crime, considered and described collectively as a single entity, is alleged to be an overt act, and as the jury fully acquitted these petitioners of each overt act thus alleged, the portion of the count charging conspiracy remaining unadjudicated is insufficient to constitute criminal conspiracy." Contrary to the contention of respondent here, this authority has not been overruled or modified by any decision in this jurisdiction. In People v. MacMullen, 218 Cal. 655, 24 P.2d 793, as the opinion indicates, the legal problem presented is the reverse of that in Oliver v. Superior Court. These cases are thus clearly distinguished in the MacMullen decision, and, if any inference is to be drawn from the language used therein concerning the Oliver v. Superior Court ruling, it would be one of approval rather than disapproval or qualification.
In all particulars here involved, the form of this indictment is identical with that in the Oliver Case. In both indictments one count contains a general charge of conspiracy to commit a crime. In the Oliver Case that offense was "conspiracy to obtain the money and property exceeding in value $200, alleged to have been the subject of the offenses set forth in the preceding counts." In this case it was "conspiracy to * * * issue and sell, and cause to be issued and sold, shares * * * for a consideration other than the consideration mentioned in the provisions of" the permit of the corporation commissioner. In the Oliver Case it is charged in the conspiracy count that the defendants, in furtherance of the conspiracy, "committed certain overt acts which are delineated as the same offenses whose commission is charged in the first 33 counts of the indictment." In this case it is charged in precisely the same manner that the defendants, in furtherance of the conspiracy, committed certain overt acts. In reference to each act named it is alleged to be "an overt act" by which the defendants "did issue and sell and cause to be issued and sold" shares of capital stock for a consideration other than that mentioned in the permit issued by the corporation commissioner. Each overt act thus charged is identical with the crime charged in one of the other counts of the indictment.
It is to be noted that in the conspiracy count, in setting forth each of these overt acts, it is referred to as "an overt act"; also that the acts charged to have been done in committing "an overt act" are connected by the word "and"; the language being, "issue and sell, cause to be issued and sold," etc. (Italics ours.) This is consistent with the statement that all of that transaction is "an overt act" alleged as above quoted. In the corresponding count of the indictment dealing with the same transaction as a separate offense, the same wording is again employed and the transaction is again, as an entity, charged as such separate offense. All of the language used in each of the counts other than the conspiracy count, which is indicative of the character of the charge as setting up a single entity or a number of overt acts, precludes the latter and establishes the former. In addition to the preceding analysis, again referring to the conspiracy count, the word "an," used before "overt act," in the sentence "That said defendants, * * * as an overt act and in furtherance of their said conspiracy," cannot possibly be construed to mean a series of acts. The pleader charges that the act named "an overt act," committed to carry out the conspiracy, is that the defendants "did * * * issue and sell, and cause to be issued and sold," etc. These actions conjunctively constitute the overt act denominated "an overt act." It is doubtful if this indictment could be worded otherwise, because the offense here described by this statute is a single act, to wit, selling shares for a consideration other than as allowed by the permit. Selling the shares involves their issuance.
The case of People v. McClennegen, 195 Cal. 445, 234 P. 91, charging criminal syndicalism and conspiracy, illustrates a statute and a prosecution where acquittal of all counts other than the conspiracy might not amount to an acquittal of the charge of conspiracy, for the obvious reason that any of the other counts might be set up, not as describing "an" overt act, but rather as doing a number of the series of acts enumerated by the statute in each of several of the subdivisions of the Criminal Syndicalism Act (St. 1919, p. 281), the commission of any one of which is sufficient to complete the offense under its respective subdivision. For example, section 1 reads: "The term ‘criminal syndicalism’ as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding or abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change." (Italics ours.) The most cursory notice of the grammatical construction of this enactment as compared with the one involved in the instant proceeding suffices to convey the obvious contrasts and to show by example that the charges contained in counts of the information before us, other than the conspiracy count, are only of segregated overt acts, each one an entity in itself.
But it is said that in writing the opinion in the case of Oliver v. Superior Court, an enactment of the Legislature must have been overlooked; that this amendment to our Penal Code contains a mandate contrary to that decision. If so, the same conclusion must be reached concerning the case of People v. Koehn, 207 Cal. 605, 279 P. 646, 649. We believe that both cases were properly decided without regard to the provision in question. Our attention is called to the last provision of section 954 of the Penal Code, enacted in 1927 (St. 1927, p. 1042) and prior to the decision of Oliver v. Superior Court, supra. Undoubtedly, the reason that decision made no reference to this Code section is that it is not applicable. Probably for the same cause this enactment has not been discussed in certain other cases decided by our Supreme Court, where the provision mentioned would have been decisive if it would be in either the present matter or the Oliver Case. In People v. Koehn, supra, the opinion being rendered in 1929, it was held that, where two counts were inconsistent, not as a matter of pleading but as one of evidence adduced at the trial, the defendant must be held to be acquitted on one of the two counts of the indictment. We quote from the opinion: "Returning to the question whether a conviction on both counts of the information may be sustained, we are of the view that the two conclusions are inconsistent with each other and cannot be reconciled by the application of any rule by which the purposes of a rational mind may be determined. * * * The act seems to be devoid of rationality, whatever may have been the end attempted to be attained. From the nature of the case we are unable to perceive upon any theory how the defendant could have intended to commit both of the offenses charged in the information." Here the same is true. The two conclusions are wholly inconsistent. They cannot be reconciled by any rule of rational reasoning. While the provision of section 954 above adverted to has been passed over in certain cases subsequently decided, it may be well to express our view as to why it is not applicable here. If the enactment were to be construed as intended to govern such a case as this, it would not be binding on the courts. As was said in McClure v. Nye, 22 Cal.App. 248, 133 P. 1145, 1147: "Nor is this a case where we are bound by the legislative declaration that these appropriations are for ‘the usual and current expenses of the state.’ If it appeared that this determination of the Legislature might be a lawful and rational conclusion from facts submitted for the consideration of the legislators, then we would be bound to draw the same inference. But we are not dealing with a question involving a possible conflict of evidence, or one permitting a different rational solution. The facts appear upon the face of the enactment, and the only reasonable conclusion is that such an appropriation is not for the ‘usual current expenses of the state.’ The said legislative declaration has no greater effect, and is no more binding upon the court, than if the Legislature had declared that a certain measure is or is not constitutional. In such contingency that question would still remain for the courts to determine." In People v. McMurchy, 249 Mich. 147, 228 N.W. 723, 727, it is held that the Legislature may not divest the court of their judicial powers, and that "a statute that takes away a power of the court to direct a verdict is unconstitutional. It is an unwarranted interference with the judicial power by the Legislature. In a criminal case a judge has the power to direct a verdict." The determination that an acquittal is to be deemed an acquittal is a judicial function, not a legislative one. If in a given case, it results from the verdict rendered alone or from that and other matters of record taken together that a defendant has been acquitted, as was the situation in People v. Koehn, supra, the courts and the courts alone may decide and adjudicate that fact and that legal consequence.
There can be no doubt but that the power of determining such questions as the setting aside of a verdict, the directing of a verdict, and the effect of one verdict upon another rendered on several counts of the same indictment, both at common law and in practice in California down to the present time, has been exercised by the courts. In the leading case of Thoe v. Chicago, M. & St. P. R. Co., 181 Wis. 456, 195 N.W. 407, 409, 29 A. L. R. 1280, it was held that, where the Constitution confers judicial power upon the courts any statute forbidding the court to direct a verdict is violative of the Constitution and void. The opinion quotes from Finkelston v. Chicago, etc., Co., 94 Wis. 270, 68 N.W. 1005, as follows: "Then, the motion for a nonsuit or the direction of a verdict requires that disposition of the case, as a matter of right, which implies a judicial duty to grant it. Such disposition by no means trenches on the province of the jury, but is the exercise of a judicial function, essential to the due administration of justice." Continuing, it is declared: "It is clearly evident that the exercise by the court of the authority to make such a determination when properly called upon to do so is of the very essence of judicial power; that is, the power to determine under the law the rights of parties properly before it. Further exposition cannot make it plainer." And further: "If the power to determine the legal sufficiency of the evidence is a judicial power, then the Legislature has exercised that power by determining in every case the legal sufficiency of the evidence to go to the jury. If this does not constitute a clear exercise of judicial power it is difficult to imagine a case where the judicial power can be invaded. At the close of the evidence, the statute steps in and performs a function that has been the function of common-law courts from time immemorial. * * * Neither has the Legislature power to declare in advance that the evidence is legally sufficient in every case. It may or it may not be. Whether it is or not is for the court to determine in the exercise of the powers conferred upon it by the Constitution. A motion to direct a verdict calls for the exercise of legal judgment by applying the law to the facts of each case. It cannot be done wholesale by legislative fiat."
In deciding the case of State ex rel. Cartmel v. Aetna Casualty & Surety Co., 84 Fla. 123, 92 So. 871, 873, 24 A. L. R. 1262, the court discussed the scope of judicial power in a similar situation, holding that a verdict rendered may be set aside if in the judgment of the trial court it is contrary to law or the manifest weight of the evidence and the principles of right and justice, and that power of the court is inherent and an implied prerogative. It is said: "What weight a trial court, or an appellate court of general jurisdiction shall give to the verdict of a jury is a judicial matter that cannot be controlled by legislative enactment."
The books contain many instances where laws enacted in attempts to exercise police powers have been held not capable of being sustained on that ground and have been held to constitute infringements of personal or property rights. In all of these, at least by implication, the Legislature had determined that the business attempted to be regulated was so "clothed with a public interest" as to justify the lawmaking department of the government regulating it. In the leading case of People v. Weller, 237 N.Y. 316, 143 N.E. 205, 207, 38 A. L. R. 613, the statute itself expressly so declared. However, as to this issue the court’s decision reads: "The declaration of the Legislature that the price or charge for admission is a matter affected with the public interest is not conclusive upon the courts; for the courts must in each case decide whether in fact the public interest justifies an attempted restriction by the state upon the liberty of its citizens. Not the assertion of the Legislature, but only the actual existence of conditions which would justify the exercise of legislative control, must be the basis of a valid exercise of the police power." Not the assertion by the Legislature, regardless of the language used, that an acquittal is not an acquittal, but only the fact itself as shown in each case, can be regarded by the courts. Not the legislative fiat, determining wholesale that in all cases where an indictment or information contains more than one count a verdict of acquittal shall not be deemed or held to be an acquittal of the charge contained in any of the others, but the facts and the record presented to the trial or appellate courts, tested and measured by legal principles interpreted and administered by the judiciary, must in each instance provide the answer. In the instant case, all of the evidence on all of the counts was submitted to the jury. It solemnly returned its verdicts on all except the conspiracy count, giving as its final conclusion that as to the charge contained in each such count defendants were innocent thereof. The offense alleged in each of these counts, stated as an entity, is identical with the allegation of corresponding overt acts related in the conspiracy count; and, when each of said offenses was subtracted from the conspiracy count, it left no overt act to support a verdict of guilty on that count. Legislative enactments cannot make that which is constant, inconstant. They cannot transform a vacuum into substance, nor can they take from the courts their jurisdiction to determine whether in a given case a jury’s verdict of acquittal on one count spells acquittal on another count, or subtracts from the structure of that other count a pillar without which it cannot stand. The judicial power "is the power to hear and determine those matters which affect the life, liberty, or property of the citizens of the state." City of Sapulpa v. Land, 101 Okl. 22, 223 P. 640, 644, 35 A. L. R. 872. "The grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to." Cooley’s Constitutional Limitations, vol. 1, p. 174. The incidental exceptions mentioned have no application here.
No limitation of the legislative department within its own proper sphere or restraint from passing beyond the border into that of the judicial has ever been declared by the courts except as the exercise of a duty imposed by constitutional sanction and behest, and the preservation of that system of checks and balances within our government which has up until now provided the greatest measure of protection for the lives, property, and liberty of its citizens of any government, present or past. The judiciary cannot and must not shirk its responsibility. Respect for law and the law’s administrators, the courts, is essential to the security of our American institutions. What underpinning can there be for such respect if the courts declare themselves powerless to set aside verdicts so inconsistent that, as was said by our Supreme Court in the Koehn Case, they "cannot be reconciled by the application of any rule by which the purposes of a rational mind may be determined"? What basis for confidence can there be in a system or a judiciary charged with the protection of the liberty and life of the individual which would fail to act to relieve a citizen of a verdict of guilty of an offense, where the same jury which rendered the verdict upon the same evidence has answered, by another verdict, that he did not commit one or more of the acts legally necessary to render him guilty of the crime of which he has been convicted? Such was the case in People v. Andursky, supra, in Oliver v. Superior Court and in the instant case. Respect for the law cannot be maintained, nor can confidence in courts exist, if the latter, while admitting in cases tried by them that verdicts returned result in gross injustice, are inconsistent to the point of irrationality and in fact demonstrate the innocence of the accused and convicted, refuse relief, and sentence men to incarceration on the pretext that the Legislature has tied their hands in the performance of their judicial functions and their constitutional obligations.
An interesting incongruity occurs in the Legislature’s apparent appraisal of the right to property as balanced against those affecting liberty and life. Section 625 of the Code of Civil Procedure safeguards the loss of the former through inconsistent verdicts of a jury with care, precision, and completeness. In addition to a general verdict, special verdicts are provided for to be rendered upon any question of fact allowed by the court. If the general verdict and the special finding are inconsistent, the special finding is made to control. In a personal injury case, where a special finding has been asked on the issue of contributory negligence, a finding that the plaintiff was guilty of such contributory negligence would, of course, overcome a general verdict for the plaintiff. The Legislature has not made this provision in criminal cases, but it is the duty of the court in the exercise of its implied and inherent powers to apply the same principle. By the same theory and the application of the same principles appellate courts unhesitatingly reverse judgments where the findings are hopelessly inconsistent and affect the substantial rights of the appellant. No authority less than the Constitution can take from the judicial department its judicial powers. This has been done in a few instances where by constitutional provision juries are given the decision of law as well as fact in trials for criminal libel and in personal injury suits.
The history of section 954 of the Penal Code reveals that its various changes have principally had to do with making provision for permitting the prosecution to set forth the same offense in different forms under different counts, and the resultant problem of need for an election by the prosecution. Prior to 1872 (St. 1851, p. 238, § 241), the statute allowed the same offense to be charged in different forms in separate counts. The enactment of 1872 (Penal Code 1872, § 954), provided that the indictment could charge but one offense in one count. However, in 1873 (Amendments to the Codes 1873-74, p. 437) the provision again permitted the allegation of the means to be charged in the alternative. In 1905 (St. 1905, p. 772) the Code allowed the statement of the same offense in different counts, and in 1915 (St. 1915, p. 744) an amendment provided that an indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crime or offenses, under separate counts. Also, except for the case of People v. Ranney, 123 Cal.App. 403, 11 P.2d 405, in which the court’s statement is based on the last sentence of section 954, Penal Code, added in 1927, and to which decision reference will be made, post, during the entire period from 1851 to this time the decisions of our appellate courts have consistently held that the verdict on one count will, if the facts and record warrant it, be regarded as bearing on the guilt or innocence of the accused under other counts of the same information or indictment; that such interdependence exists, having reference to the nature of the charges in the several counts and whether or not they are related, is a matter for judicial determination; nor has the judicial character of such decision ever been questioned in California or elsewhere, as far as our inquiry shows. It has been held that, where two counts of an information charge offenses growing out of and relating to the same transaction, and the jury by an acquittal on one count necessarily must logically find that the defendant did not commit an act which is an essential element in the offense charged in the other count, a verdict of guilty on the last-named count will be set aside as a nullity. This is the holding in People v. Powell, 50 Cal.App. 436, 195 P. 456, decided in 1920, and citing People v. Piner, 11 Cal.App. 542, 105 P. 780, decided in 1909, and People v. Warriner, 37 Cal.App. 107, 173 P. 489, decided in 1918, and in People v. Andursky, 75 Cal.App. 16, 241 P. 591, rendered in 1925, both of the last two decisions after the amendment of 1915. Also to the same effect is Oliver v. Superior Court, decided in 1928, and People v. Koehn, supra, in 1929, the last two after the amendment of 1927. These authorities and others have continued down to the present time, the only one from whose language an inference that the matter is one for legislative determination may be drawn being People v. Ranney, 123 Cal.App. 403, 11 P.2d 405, 406, where it was held without other comment that, since the addition of the last sentence to section 954, "a verdict of either conviction or acquittal" upon the charge in one count "has no effect or bearing upon other separate counts" contained in the indictment or information. However, in so far as the determination of that case was concerned, the decision against the claim of inconsistent verdicts could not have been escaped, regardless of the Code amendment, for there, as stated in the opinion, just as in People v. Edwards, 72 Cal.App. 102, 236 P. 944, and People v. Warriner, supra, the allegations in the separate counts were of separate and distinct offenses not connected with each other. Under such circumstances, all judicial decisions hold, independently of the provisions of section 954 of the Penal Code in question, or other statute, that "each count must stand upon its own merit." As above indicated, under the same circumstances the same ruling was made in People v. Edwards and People v. Warriner, both before the amendment quoted in the Ranney Case.
In reviewing decisions in this jurisdiction, mention should be made that, after the amendment of 1915, which, as above stated, provided that an indictment or information may charge two or more offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, it was observed in People v. Howard, 31 Cal.App. 369, 160 P. 697, 702, that "both in theory and in fact, it is only that particular offense, if any at all, which the evidence discloses that the accused has committed upon which he is to be tried or, in the last analysis, is tried; for, very clearly, he can, in contemplation of law, neither be tried upon, nor convicted under, all the counts." The court was discussing an information in three counts charging three different offenses of the same class. This case is worthy of note as an additional instance indicating the continued judicial treatment of the matter as one within its prerogative, notwithstanding the statutory provision then existing, which declared: "But the defendant may be convicted of any number of the offenses charged."
It is unquestionably the function and the duty of the courts to prevent, by such appropriate action as the case may require, one tried for crime from being convicted and punished twice for the same offense, or from being punished for an alleged offense as to some essential element of which a jury has declared him to be innocent. In People v. Powell, People v. Andursky, Oliver v. Superior Court, and People v. Koehn, supra, the courts acted judicially and without drawing on any statutory authority in declaring that in the respective cases convictions could not be maintained where the inherent rights of defendants would be invaded and violated thereby. Courts may not forget that, while society is endangered by the escape of criminals from the penalties prescribed by the law for those who commit public offenses, and is protected by their punishment, the ill consequences of the innocent being unjustly convicted and branded as felons has always been recognized by states advanced in civilization as entailing so much more disastrous results against the solidarity and security of government itself that evidence of guilt by proof greater than a preponderance of evidence has been almost universally required; and under the common law the degree of such proof demanded has been fixed as a degree beyond reasonable doubt. Our decisions have repeatedly declared it to be the duty of the trial judge to set aside a verdict of guilty if he entertains a reasonable doubt of the defendant’s guilt. People v. Lepkojes, 48 Cal.App. 654, 192 P. 160; People v. Knutte, 111 Cal. 453, 44 P. 166. Zeal in prosecuting crime sometimes leads those charged with that duty to press beyond that impartial fairness which the law and the public interest require of all public servants in seeking convictions, and so to use, as weapons in their battle against crime, laws not intended to be applied as they may then be. Our Legislature has seen fit, and without doubt wisely, to make conspiracy a felony in itself, using care to keep its definition consistent with general criminal law principles by making necessary an overt act to complete the offense. But surely it was never intended to be employed as a dragnet to accumulate a mass of flotsam and jetsam of suspicion which may incubate guesses from whose infinity and confusion the mind of the jury might conclude some inculpatory fact exists, whether the one charged or some other, on the theory, perhaps, of the adage that, where there is much smoke, there must be some fire. However, the verdicts in Oliver v. Superior Court and the instant case can be explained only on this hypothesis, or that the jury failed through misunderstanding to follow the law which it must be presumed was properly given it by the court. The acquittal of these petitioners on all twelve counts, charging in each instance a single offense as an entity, which, taken together, includes every overt act charged in the conspiracy count, leaves the verdict of guilty of conspiracy one which could not have been arrived at through any process of rationalization.
It seems probable that the provision of section 954 here under consideration was intended to be declaratory in its nature. If so, and if the Legislature only meant thereby to put an end to any doubt that might exist as to the effect of certain other provisions of that section of the Code, it is efficacious to that extent and a proper exercise of legislative power. It is to be presumed that it was enacted with such intent that it can be sustained and applied; we must assume that the Legislature realized the constitutional limitations upon its authority and did not mean to invade the province of another and independent department of government. As a declaratory statute whose purpose is to state the common law as already recognized by court decisions, in which class a large proportion of our Code sections are, it is most useful and appropriate. People v. Edwards, supra, was a case where a conviction was sustained on one count, although on two other counts of the same indictment the jury had acquitted. The prosecution proceeded under that provision of section 954 which says: "An indictment * * * may charge * * * two or more different offenses of the same class of crimes or offenses under separate counts." This decision was rendered before the amendment adding the last sentence. In effect it held exactly what that sentence states to be the law. The prosecution in People v. Ranney was under the same provision of section 954, Penal Code, as People v. Edwards. We quote from the opinion in the Ranney Case: "Each count contained in the indictment was based upon allegations of separate and distinct appropriations of funds." It cited the last sentence of section 954. It might with equal finality have cited People v. Edwards and cases there cited, all of which in the exercise of the judicial power ruled in the same way. Other California cases might be mentioned upholding the conviction of defendants under informations or indictments charging "two or more different offenses connected together in their commission" and "different statements of the same offense," where a conviction was had on one count and an acquittal on one or more counts.
Viewed as a declaratory enactment, the Legislature’s statement of the law to be that "a verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count" means no more than that an acquittal on one count shall in no case preclude a proper and judicial consideration by the courts of the entire record before them and of all elements, including the verdict of acquittal, appropriate for the exercise of their constitutional judicial function of "applying the law to the facts" and "protecting the rights of the citizen to life and liberty"; and this interpretation is quite consistent with the other provision of section 954, supra, that "the defendant may be convicted of any number of the offenses charged."
The point is made by respondent that in no event is habeas corpus an appropriate remedy for these petitioners. When the verdicts of the jury are all considered, the result reached is an acquittal of defendants on all counts, including the one charging conspiracy. Oliver v. Superior Court, supra. The judgment and sentence is therefore as clearly void as though a sentence had been pronounced by the court on the verdict of not guilty rendered on any one of the other twelve counts. Such a judgment would, of course, be a nullity; and so, also, is this judgment void and beyond the jurisdiction of the court.
Petitioners are discharged from custody.
DESMOND, Justice.
I concur. As stated in People v. Johnson, 22 Cal.App. 362, at page 365, 134 P. 339, 341:
"To sustain a conviction of criminal conspiracy, it was necessary to allege and prove not only the making of the conspiracy, but the commission of some act to effect the object thereof." (Italics mine.) This information, in the last thirteen of the fourteen counts, sets up thirteen separate acts, charging each of them as a separate criminal offense; namely, violation of the Corporate Securities Act. The defendants were each found not guilty on all thirteen counts. In other words, the jury found that neither of them committed any of the acts. These are the very acts alleged as overt acts in count I, charging conspiracy, and identified as the same by comparison of dates and persons named; also by the phrase in each of the last thirteen counts, "being a different offense from but connected in its commission with the charge set forth in Count I hereof." We can only conclude from the foregoing that, when the jury found these petitioners guilty of conspiracy, they based their finding not upon proof of any of the overt acts alleged (for of those acts they were specifically found not guilty), and a conviction of conspiracy cannot be had without proof of at least one of the overt acts charged. "It has already been noted that the prosecution was required to allege and prove the overt act or acts, and the jury were not to be permitted * * * to cull from the evidence proof of some act other than those charged, and conclude therefrom that the crime was properly made out." People v. Johnson, supra.
STEPHENS, Presiding Justice.
I dissent. My views of this case are so different from those of my associates and the principles involved are of such importance that I deem it appropriate to express my views in the form of an opinion.
Petitioners were convicted of the offense of conspiracy to violate certain provisions of the Corporate Securities Act and acquitted of thirteen alleged violations of that act. In order to understand the issues of the case, it will be necessary to explain and partially quote the grand jury indictment. Count 1 charged that the petitioners, with others, did "feloniously and knowingly combine, conspire and agree together that they would knowingly issue and sell and cause to be issued and sold, shares of the capital stock of Master Holding Corporation * * * for a consideration other than the consideration mentioned in the provisions of and in nonconformity with, and with intent to violate the terms of ‘a legally issued permit of the Commissioner of Corporations."’ Then follows as an allegation of overt acts language to the effect that such persons, including petitioners, did "issue and sell and cause to be issued and sold, shares of the capital stock of Master Holding Corporation" to certain named persons in violation of the referred to permit. In like manner there is alleged in the indictment thirteen instances of the same sort of overt acts. The other counts of the indictment charge violation of the Corporate Securities Act, and merely copy each instance of the alleged overt acts as set out in count 1. The indictment of each of these counts opens with the following language: "For a further and separate cause of action, being a different offense from, but connected in its commission with, the charge set forth in count 1 hereof," etc. In other words, the conspiracy charge sets out thirteen different times that petitioners did issue, sell, cause to be issued and caused to be sold, shares contrary to the terms of the permit. Then the allegations of what happened at these thirteen separate transactions are separated and each separate transaction is alleged as a count in violation of the Corporate Securities Act.
The jury acquitted petitioners of every count in violation of the Corporate Securities Act and convicted them of the one count of conspiracy to violate that act. It is claimed by petitioners that under the terms of the indictment they could not be convicted of conspiracy when they were not guilty of violation of the Corporate Securities Act.
The petition should be denied. In the first place, no authority need be cited to the proposition that jurisdiction alone is put in issue by habeas corpus. Even though it be herein admitted that the verdict of acquittal in the counts alleging violation of the Corporate Securities Act and the conviction on the count alleging conspiracy are inconsistent (and it is not so admitted), it does not seem to me that the jurisdiction of the jury or the court is affected. Even on direct appeal, which throws every possible legal question open, the weight of authority in California and the United States courts is that inconsistent verdicts returned by the same jury simultaneously are not therefore invalid. As concisely stated under point 5 in the opinion in People v. Smith, 117 Cal.App. 530, 4 P.2d 268, 269: "The record before us so clearly establishes the guilt of appellants on all the charges of which the jury found them guilty, that we are not disposed to grant them relief because the jury failed to convict them of the commission of the other crimes which the evidence as clearly established. They had the benefit of the jury’s compassion, rather than suffering a burden because of its passion, as they claim. If error was committed, it was in appellants’ favor and of this they cannot complain." Non constat but that this very situation would appear upon a direct appeal of the instant case. People v. Day, 199 Cal. 78, at pages 83 et seq. under points 2 to 6, inclusive, 248 P. 250; People v. Ranney, 123 Cal.App. 403, point 1, 11 P.2d 405; People v. Edwards, 72 Cal.App. 102, point 18, 236 P. 944; People v. McCollum, 116 Cal.App. 55, point 1, 2 P.2d 432; Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A. L. R. 161.
But in my opinion the verdicts are not inconsistent. The finding of the jury that the offense of violation of the Corporate Securities Act was not committed is not a finding that no element of such an offense was present in the proof. In Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764, 765, upon which petitioners heavily lean, this exact point is alluded to as follows: "It is important to note the fact * * * that the only overt acts alleged in count 34 [conspiracy] are the specific crimes charged in the other counts; the sole overt acts averred were ‘larceny and embezzlement.’ The situation is clearly different from that which would have been presented had the conspiracy charge contained allegations of a number of overt acts which, taken together, would constitute grand larceny or embezzlement. Had the indictment been so drafted, it could not be said that an acquittal of grand larceny or embezzlement would necessarily have been a determination that no criminal conspiracy pertaining to the same transactions had occurred. But here the conclusion cannot be escaped that since each crime, considered and described collectively as a single entity, is alleged to be an overt act, and as the jury fully acquitted these petitioners of each overt act thus alleged, the portion of the count charging conspiracy remaining unadjudicated is insufficient to constitute criminal conspiracy." In the instant case violation of the Corporate Securities Act, the crime other than conspiracy alleged, is not set up as a "single entity," but instead it is alleged by setting up "a number of overt acts" which, taken together, would constitute a violation of the Corporate Securities Act. It is alleged that petitioners did issue and did sell shares of stock. The crime of violation of the Corporate Securities Act requires both of these facts, but conspiracy requires but one. It is also alleged that petitioners did cause to be issued and did cause to be sold shares of stock, and the conclusion follows that is immediately above pointed out. No clearer authority could be written than the Oliver Case, supra, to sustain the premise here taken.
The converse of the Oliver Case, but based upon the same principle, is the case of People v. MacMullen, 218 Cal. 655, 24 P.2d 793. In that case three persons were indicted for the crime of conspiring to steal $500, and it is therein alleged, as the overt act in the conspiracy, that the money was actually stolen. After the jury had been impaneled to try the case, the charge was dismissed without the consent of one of the defendants. Subsequently thereto this person was indicted for grand theft in taking the identical $500, and she pleaded not guilty, once in jeopardy and former acquittal. She was found guilty, and the verdict was against her on the special pleas. It was contended on appeal that the dismissal of the conspiracy charge in the circumstances operated as an acquittal of the overt act, and that the overt act was the act alleged to constitute the grand theft charge. But the Supreme Court was not in agreement with this theory, and cited many cases to the contrary. The basis of the reason of these cases is the very basis for one of the reasons why the writ should be discharged in the instant proceeding, viz., it may well be that the defendant MacMullen stole the money but was not guilty of conspiracy because she did not conspire with others to do it. In the instant proceeding it may well be that the jury, in considering the violation of the Corporate Securities Act, found that the facts proved fell short of establishing an accomplished violation, but that they did establish a conspiracy to so violate the act but got no further, for example, than the issuance of the certificates of stock that were to be sold contrary to the permit to sell stock. Here there is no inconsistency in the verdicts. Here are facts plainly sufficient to constitute overt acts in conspiring to violate the Corporate Securities Act. The quotation from the Oliver Case plainly shows that the premise of the decision as expressed in the opinion is that the alleged overt act and the substantive crime alleged were the same inseparable act, "a single entity."
It is interesting to note that section 954 of the Penal Code as amended May 18, 1927 (St. 1927, p. 1042), was effective when the opinion in the Oliver Case was written, but that it is not referred to therein. The amendment reads: "A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count." This amendment is effective in the instant proceeding, and its constitutionality can hardly be questioned after the use of the language under point 1 in the opinion in People v. Ranney, supra.
Petitioners also claim that they should be dismissed from custody because (a) they were not brought to trial within 60 days after the disagreement of the jury, causing a mistrial prior to the trial in which conviction was had, citing section 1382 of the Penal Code; (b) that the trial was not set within 30 days from the indictment, according to section 1050 of the Penal Code; and (c) that they were not given a speedy trial as guaranteed by section 13 of article 1, of the Constitution. I shall consider these questions in the order of their statement.
(a) Under the doctrine expressed in In re Alpine, 203 Cal. 731, 265 P. 947, 58 A. L. R. 1500, habeas corpus is not available in the instant case. That case holds that, inasmuch as section 1382 of the Penal Code provides a speedy remedy at law for its own effectiveness, to wit, a direct motion for the dismissal of the cause where the defendant has not been brought to trial within 60 days from the date of the indictment or the filing of the information, the writ of habeas corpus may not be used to effect a dismissal. Should the motion be denied, the use of the writ of mandate is available.
(b) Section 1050 of the Penal Code has been held to be directory and does not provide for dismissal for noncompliance with its provisions. Ray v. Superior Court, 208 Cal. 357, 281 P. 391. There was a mistrial in the instant case, and thereafter several continuances were had before the case went to trial again, and, except for a continuance of five days before the second attempted trial, each continuance was specifically consented to by petitioners, or by their silence they are conclusively presumed to have given their assent thereto. Ray v. Superior Court, supra, and cited cases. The point that failure to object to a continuance amounts to consent thereto may well be considered, should petitioners consider the use of the motion and the writ of mandate.
(c) The circumstances set out under (b) conclusively negative the claim that petitioners have not been accorded a speedy trial under the guarantee of the Constitution.
The writ should be discharged and the petitioners remanded.