People v. James

• Decision Date: 07 February 1961
• Docket Number: Cr. 3040
• Citation: 10 Cal.Rptr. 809,189 Cal.App.2d 14
• Court: California Court of Appeals Court of Appeals
• Parties: , 91 A.L.R.2d 697 PEOPLE of the State of California, Plaintiff and Respondent, v. Edison JAMES and Charles Wilson, Defendants, Edison James, Appellant.

Page 809

10 Cal.Rptr. 809

189 Cal.App.2d 14, 91 A.L.R.2d 697

PEOPLE of the State of California, Plaintiff and Respondent, v. Edison JAMES and Charles Wilson, Defendants, Edison James, Appellant.

Cr. 3040.

District Court of Appeal, Third District, California.

Feb. 7, 1961.

As Amended Feb. 8, 1961.

Rehearing Denied March 2, 1961.

Edison James in pro. per.

Stanley Mosk, Atty. Gen., by Doris H. Maier and C. Michael Gianola, Deputy Attys. Gen., for respondent.

PEEK, Justice.

Defendants James and Wilson were jointly charged with (1) the crime of conspiracy to commit forgery (Penal Code, section 182), and (2) the crime of forgery (Penal Code, section 470). At the conclusion of the trial the jury returned a verdict finding defendant James guilty as charged on both counts and Wilson guilty of conspiracy. Each defendant moved for a new trial and the same was granted as to Wilson, but denied as to James. Judgment was then entered against James and he alone appeals.

Since the judgment must be reversed because of our conclusion that it was error to grant the new trial as to Wilson and deny the same as to James, it becomes unnecessary to discuss the remaining contentions set forth in James' brief or summarize the evidence in detail. It is sufficient to note that as to the forgery count the record discloses ample evidence to sustain that charge; that is, (1) that the defendant attempted to pass a check as true and genuine, (2) that he knew it to be forged, and (3) that it was done with the intent to defraud a storekeeper. People v. Pounds, 168 Cal.App.2d 756, 336 P.2d 219.

The sole question concerns the conspiracy count. There can be no question but that there must be a degree of dependent criminality between coconspirators to violate a criminal statute in order for a conviction to stand. In other words, the guilt of both must concur in order to establish the guilt of either. In the early case of People v. Richards, 67 Cal. 412, 413, 7 P. 828, 829, the court held that: 'No one can dispute, or ever has disputed, that the offense cannot be committed by one alone, * * *'. See also People v. Miller, 82 Cal. 107, 22 P. 934; People v. MacMullen, 134 Cal.App. 81, 24 P.2d 794.

In amplification of the rule above enunciated, the court in the MacMullen case in 134 Cal.App. at page 82, 24 P.2d at page 795 held 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.' Stated otherwise: 'If the indictment had simply charged appellant and his two co-defendants with conspiracy * * * the acquittal of the two co-defendants would have made appellant's conviction erroneous.' People v. Sagehorn, 140 Cal.App.2d 138, 294 P.2d 1062, 1068.

In the present case, the portion of Count One of the information pertinent to this issue merely charged that '...