In Marino v. United States, 91 F.2d 691 [113 A.L.R. 975], it was said that an overt act is something apart from the conspiracy, and is an act to effect the object of the conspiracy. As for the necessity of alleging and proving an overt act, also, see, Hyde v. United States, 225 U.S. 347, 359 [32 S.Ct. 793, 56 L.Ed. 1114, 1123]; People v. Daniels, 105 Cal. 262, 264 [38 P. 720]; People v. Johnson, 22 Cal.App. 362, 365 [ 134 P. 339], citing the Daniels case. [2] However, the second count does charge the overt act of enticing, engaging and procuring the Giffin girl to engage in indiscriminate sexual intercourse, etc.; and the alleged defect in the first count is not necessarily fatal to the case if there was, in fact, but one conspiracy, though its objects were manifold.
". . . unless you are convinced beyond a reasonable doubt that a conspiracy existed prior to or at the time that one or more of the overt acts in the information were committed, then it would be your duty to acquit the defendants of the charge of conspiracy." (Citing People v. Johnson, 22 Cal.App. 362, 366 [ 134 P. 339].) The court refused these instructions as "covered."
SENTENCE [18] Lastly, defendant argues, with merit, as conceded by the attorney general, that the trial court exceeded its jurisdiction by imposing two sentences upon a verdict of guilty of violation of both sections 182, subdivision 2, and 182, subdivision 5, Penal Code, when only one single act of conspiracy has been established by the evidence (citing People v. Kobey, 105 Cal.App.2d 548 [ 234 P.2d 251]; People v. Yant, 26 Cal.App.2d 725 [ 80 P.2d 506]; People v. Johnson, 22 Cal.App. 362 [ 134 P. 339]), and that the imposition of dual sentences, even though made to run concurrently, may mislead the adult authority into believing a harsher treatment should be imposed. The deputy district attorney and the trial judge, at the time of sentence, indicated that it was their belief that the charges made were all one conspiracy.
[2] In People v. Cossey, 97 Cal.App.2d 101, 110 [ 217 P.2d 133], this court held that the offense designated in section 182 of the Penal Code may be to do a number of things which are specifically set forth in subdivisions 1, 2, 3, 4, and 5 of the section and that the gist of the charge is conspiracy and all of the objects of such a conspiracy may be the object of one charge. In People v. Johnson, 22 Cal.App. 362, 364 [ 134 P. 339], it was held that to do all of the things enumerated in different subdivisions of the section amounts to a single offense only. And in People v. MacPhee, 26 Cal.App. 218, 221 [ 146 P. 522], it is held that the language of section 182 of the Penal Code is inclusive and elastic enough to permit the framing of an indictment charging a conspiracy to do or permit the doing of any or all of the illegal acts referred to therein.
Three separate and distinct crimes, therefore, were not committed under the evidence. ( Ex Parte McCarthy, 72 Cal. 384 [14 P. 96]; People v. Werner, 29 Cal.App. (2d) 126 [ 84 P.2d 168]; People v. Johnson, 22 Cal.App. 362 [ 134 P. 339]; People v. Lawlor, 21 Cal.App. 63 [ 131 P. 63].) [3a] Appellant raises this point only by contending that the evidence is not sufficient to support his conviction on each count.
The language of section 182 of the Penal Code here in question is inclusive and elastic enough to permit the framing of an indictment charging conspiracy to do or commit any or all of the illegal acts referred to therein ( People v. MacPhee, 26 Cal.App. 218, 220 [ 146 P. 522]); and to do all of the things enumerated in the different subdivisions of section 182 of the Penal Code amounts to a single offense only. ( People v. Johnson, 22 Cal.App. 362, 364 [ 134 P. 339]; People v. Welch, 89 Cal.App. 18 [ 264 P. 324]; People v. Gilbert, ante, p. 1 [ 78 P.2d 770].) [3] As to the uncertainty charged with reference to the grand theft allegations, the answer is that the purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial.
" After quoting from section 518 of the Penal Code defining extortion, and from People v. Schmitz, 7 Cal.App. 330 [15 L.R.A. (N.S.) 717, 94 P. 407, 419], People v. Sanders, 188 Cal. 744 [ 207 P. 380], and People v. Johnson, 22 Cal.App. 362 [ 134 P. 339], the court concludes: "With reference to the two counts in the information in this case here being considered, it is clear that the basis therefor was a single transaction and involved but one conspiracy. In the case of United States v. Weiss, 293 Fed. 992, in which one of the questions before the court was that of the right of the prosecution to charge several different criminal offenses where they arose out of one conspiracy, the following language appears: `At the threshold it must be noted that the government cannot split up one conspiracy into different indictments, and prosecute all of them, but that prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.'
So considered, in substance the first count of the information would be identical with the second count thereof. In the case of People v. Johnson, 22 Cal.App. 362 [ 134 P. 339], under the provisions of section 182 of the Penal Code, which is the same section under which the prosecution in the instant case was maintained, the defendant was charged in two counts with having committed the crime of conspiracy. In the first count thereof the accusation was that the defendant and two others had conspired to commit a crime, to wit, to falsely accuse the named individual with having issued a check on a bank without having sufficient funds or credit at that bank to meet the check.
People v. Compton, 123 Cal. 403 [56 P. 44], is not a conspiracy case. Both People v. Johnson, 22 Cal.App. 362 [ 134 P. 339], and People v. Cory, 26 Cal.App. 735 [ 148 P. 532], relate to phases of the law concerning overt acts in conspiracy cases, but neither of them touches the present question. In People v. Beck, 60 Cal.App. 417 [ 213 P. 61], the overt acts alleged apparently would have been nothing more than acts of preparation under the law of attempts.
Instruction 17 is substantially in the language of section 1104 of the Penal Code and is as follows: "Upon a trial for conspiracy, the defendant cannot be convicted unless one or more overt acts are alleged in the information, nor unless one of the acts alleged is proved." The instruction in the case of People v. Johnson, 22 Cal.App. 362, 366 [ 134 P. 339], cited by the defendant, is entirely at variance with the instruction here criticised, viewed in connection with the succeeding instruction. In the Johnson case, the court told the jury that it was sufficient "if you find that one or more of the defendants entered into an agreement with another defendant, . . ., to obstruct and impede the trial of said action, and that in pursuance of said agreement some act was done by one of them toward carrying the agreement into effect."