Opinion
Rehearing Denied April 17, 1962.
Hearing Granted May 29, 1962.
Opinion vacated 25 Cal.Rptr. 847, 375 P.2d 839.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord and Harry B. Sondheim, Deputy Dist. Attys., for appellant.
Shulman & Shulman and Adley M. Shulman, Beverly Hills, for respondent Walter P. Smith.
J. E. Simpson, Los Angeles, for respondent Virgil D. Dardi.
Robert A. Eaton, Beverly Hills, for respondent Ruby Schinasi.
J. Edward Fleishell, San Francisco, for respondent Stewart B. Hopps.
Loeb & Loeb and Herman F. Selvin, Los Angeles, for respondent Joseph L. Seltzer.
Clarence S. Hunt, Long Beach, for respondent Joseph D. Blau.
BURKE, Presiding Justice.
This is an appeal by the People from an order setting aside an indictment as to certain defendants and counts thereof pursuant to Penal Code, section 1238, subdivision 1. The indictment was filed October 4, 1960, following a grand jury investigation into the management of an industrial loan company known as the Equitable Plan Company, hereinafter termed 'EPC,' during the period from the fall of 1953 until December 20, 1957.
The indictment was in eight counts; twelve individuals were cherged as parties defendant. All named defendants were charged in Count I with engaging in a conspiracy between October 1, 1953, and December 20, 1957, to commit crimes; to cheat and defraud by criminal means; to obtain money and property by false pretenses and by false promises with fraudulent intent not to perform such promises; to pervert and obstruct justice and the due administration of the laws in violation of section 182, subdivisions 1, 4 and 5, of the Penal Code, a felony; and in pursuance of such conspiracy that certain defendants, individually named with respect to each overt act charged, engaged in certain overt acts numbered 1 to 18, inclusive. Of the seven remaining counts, six were charges of grand theft, while the last charged a violation of Corporations Code, section 3020, subdivision (b) (falsification of corporate records). As was noted with respect to the overt acts, not all defendants were named in the substantive counts.
Of the twelve defendants, the principal defendants, Lowell M. Birrell and his sister, Mary B. Prior, have not been brought within the jurisdiction of the California Superior Court. Of the remaining ten defendants, the case against Verna Skoglund was dismissed.
On November 4, 1960, each defendant made a motion to set aside the indictment pursuant to Penal Code, section 995. On January 20, 1961, the court granted the motions of six defendants, Walter P. Smith, Virgil D. Dardi, Stewart B. Hopps, Joseph L. Seltzer, Joseph D. Blau and Leon Drezner. The court further granted the motions of defendants Joseph W. Crosby and Ruby Schinasi as to some counts and denied as to others. As to defendant Eliot E. Berkwit the motion was denied. Three of the defendants whose motions, or some counts thereof, were denied (Berkwit, Crosby and Schinasi) sought writs of prohibition in the District Court of Appeal which were denied without opinion.
Prior to the court's decision on defendants' motions under Penal Code, section 995 the People sought to amend the indictment in two respects:
1. They moved orally to amend Count II to change its date from October 28 to October 26, and to alter the amount of money involved, asserting that this amendment was necessary to correct a clerical error which is apparent on the face of the indictment, since without the amendment Counts II and III of the indicment are exact duplicates of one another; and
2. The People filed a written amendment, the effect of which would be to toll the statute of limitations as to certain defendants by alleging a longer period of nonresidence than was set forth in the original indictment. This written amendment would have had the effect of bringing certain defendants within the statute of limitations on Counts II through V, as well as on Counts VI, VII and VIII.
It is the People's position that (1) it was an abuse of discretion for the trial court to deny the motion to amend by interlineation Interpreting Penal Code, section 1009 (formerly Pen.Code, § 1008) the court in People v. O'Moore, 83 Cal.App.2d 586, 591, 189 P.2d 554, 557, stated: 'Under the California statute, by leave of court, an indictment may be amended after the plea has been made, and at any stage of the proceedings, without resubmitting the cause to the grand jury, 'for any defect or insufficiency' thereof, if the amendment does not 'change the offense charged,' and the 'substantial rights of the defendant's are not thereby prejudiced. [Citations.]'
Allowing or denying the amendment to the indictment or information after defendant pleads is clearly within the sound discretion of the trial court. (Pen.Code, § 1009; People v. Foster, 198 Cal. 112, 243 P. 667; People v. Walker, 82 Cal.App.2d 196, 185 P.2d 842; People v. Shutler, 15 Cal.App.2d 704, 59 P.2d 1050.) The exercise of such discretion by the trial court, in the absence of a showing of abuse, will not be upset on appeal.
In the case before this court, with respect to the first proposed amendment, the trial judge pointed out that where sucessive acts of thefts are charged against the same defendants, involving the same victims alleged in separate counts, to change both the date and the amount of one of the thefts alleged by an amendment would be tantamount to changing the offense and adding an offense not charged by the grand jury. The court barred the amendment. Such a ruling was within the sound discretion of the judge and will not be disturbed on appeal.
In the original indictment the last paragraph thereof alleged that certain defendants, of whom Blau, Schinasi, Crosby and Seltzer are parties to this appeal, were absent from California after February 25, 1957. This allegation concededly was insufficient to toll the statute of limitations as to the defendants' alleged absence as to Counts II through V. To correct this, the second proposed amendment alleged that of the defendants involved in this appeal, defendants Crosby, Dardi and Schinasi, were not within the state during the period from October 26, 1953, to the date of the return of the indictment, excepting for occasional visits of a short duration totaling less than sixty days. With respect to defendant Blau there was a similar allegation for the period from February 25, 1957; and as to defendant Berkwit from December 1, 1958. It is obvious that these amendments affected the substantial rights of the defendants named and the trial court in the proper exercise of its discretion likewise denied this proposed amendment.
The People cite a number of cases to indicate the scope of amendments authorized and contemplated by Penal Code, section 1009 (formerly § 1008) and point out that they are not confined to mere matters of form as distinguished from matters of substance. Among the cases cited are People v. Stone, 89 Cal.App.2d 853, 202 P.2d 333, wherein the amendment had the effect of changing the date of the offense charged by one complete year. In its decision, however, the court made it clear there was no showing that the defendants were prejudiced thereby and that the change of the dates of the alleged conspiracy had no bearing upon the statute of limitations.
In the case before us, however, without the amendment the particular charges were clearly barred by the statute so that it is idle to argue that the substantial rights of the defendants were not involved, and clearly the court was acting within its proper discrction in denying the motion to amend. The facts of this case concerning the trial court's rulings on both of the proposed amendments to the indictments fail to disclose any abuse of discretion.
There remain for consideration on this appeal the indictments of defendants Seltzer, Hopps, Blau, Drezner, Dardi and Smith under Count I, the conspiracy count. With respect to this count it should be The commission of an overt act within the three-year period immediately preceding the filing of the indictment charging conspiracy is essential to avoid the bar of the statute of limitations. An overt act is necessary to fasten criminality upon those who conspire to consummate a forbidden purpose. (People v. George, 74 Cal.App. 440, 457, 241 P. 97.) There is no crime under a charge of conspiracy until there has been an overt act. (Pen.Code, § 184.) The general rule throughout the country, even in those jurisdictions in which conspiracy is treated as a continuing crime, is that the statute of limitations runs from the last overt act. (Grunewald v. United States, 353 U.S. 391, 396-397, 77 S.Ct. 963, 1 L.Ed.2d 931.) This rule has been recognized in California. In the case of Bompensiero v. Superior Court, 44 Cal.2d 178, 184-185, 281 P.2d 250, 255, the court said, 'Proof that one of the overt acts in furtherance of the conspiracy occurred after the time before which the statute of limitations would be a bar is sufficient, and evidence of acts occurring before that time may be received to show the conspiracy.' From this excerpt from the Supreme Court's opinion we believe it is logical to conclude that had there not been one overt act shown to have taken place within the three-year period, the conspiracy charge would have been barred under the general rule referred to above.
It follows that the prosecution of certain defendants under Count I of the indictment is barred by the statute of limitations. However, prosecution is not barred as to those defendants alleged to have been absent from the state for a sufficient number of years to have tolled the statute. The trial court granted the motion to set aside the indictment upon this ground as to defendants Hopps, Smith, Drezner and Dardi. The trial court ruled that the allegation concerning Seltzer's absence from the state was not supported by competent evidence and therefore granted the motion to set aside the indictment. The record supports the judge's ruling.
With respect to the remaining defendants, the trial court ruled that there is a sufficient allegation of absence from the state in order to toll the statute of limitations. While the competency of that evidence has been challenged the court concluded there was some competent evidence to support the allegation. Therefore the court denied the motion to set aside the indictment upon that particular ground as to such defendants.
The trial court found there was sufficient competent evidence before the grand jury to constitute probable cause for believing a conspiracy existed under Count I and defendants Schinasi, Crosby, Berkwit and Skoglund were participants therein. He therefore denied the motions of those defendants to set aside Counts, I, VI, VIII and VIII of the indictment. He granted the motion of defendants Schinasi, Crosby and Skoglund to dismiss as against them Counts II, III, IV and V of the indictment.
With respect to defendant Blau the court concluded there was no competent evidence to show a '* * * knowing participation by him in the conspiracy alleged or shown. The conspiratorial acts that are shown by the evidence * * * occurred both before and after Mr. Blau's association with [EPC] but not during or while he was thus associated.' The court therefore granted the motion of defendant Blau to set aside the indictment as to him. While, as the trial court pointed out, there is ample basis under the evidence adduced for conjecture or speculation that defendant Blau was 'extremely culpable for the failure of Equitable Plan' an indictment for a conspiracy cannot be based upon suspicion alone. It would only unduly prolong this opinion to set forth in detail the evidence, or the lack thereof, with respect to each of the motions appealed from wherein the court set aside the indictments as to certain counts and certain defendants as heretofore indicated, and no good purpose would be served thereby. It is sufficient to note that the action taken by the judge is fully supported by the record.
Affirmed.
JEFFERSON and BALTHIS, JJ., concur.