People v. Travis

BRAY, P. J.

Defendants were indicted for violation of section 182, Penal Code, conspiracy to commit theft (Pen. Code, § 484), to commit bribery (Pen. Code, §67½), and to pervert and obstruct justice and the due administration of the laws (Pen. Code, § 182, subd. 5). They waived a jury. The court, after a trial, found both guilty of attempted petty theft, which it found was a lesser included offense. Motions for new trial were denied. Defendants were sentenced to the county jail for 90 days, one day to be suspended. They appeal from the judgment of conviction and the order denying new trial.

Questions Presented

1. Is attempted petty theft an included offense in the crime of criminal conspiracy?

2. Can the judgment be corrected?

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Facts

The prosecution arose out of two traffic citations issued to Eobert Marsili, whose driver’s license had been revoked. Defendant Travis said that he could “fix” the tickets, and asked Marsili to meet him at defendant Kilberg’s liquor store. At that meeting Kilberg told Marsili that it would cost $250 to fix the tickets. Marsili gave Kilberg the tickets. Marsili's employer contacted the police, and Marsili told the police his story. The police told Marsili to get his tickets back. Both defendants told Marsili that to get the tickets back it would cost $50 for the trouble incurred; Kilberg added “for the different sergeants and everything like that, you know. ’ ’ Travis said that through Kilberg the tickets still could be fixed if Marsili could raise the $250. The police gave Marsili that sum which Marsili gave to Travis, who was then arrested. Later Kilberg was arrested. The court found defendants “guilty of a lesser and included offense of the crime of Misdemeanor, to-wit: Attempted Petty Theft.' ’

1. Is Petty Theft Included?

The attorney general concedes that it is not. The indictment charged defendants with a

conspiracy

to do three acts. The rule is well established in this state that a person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information whether or not there was evidence at his trial to show that he had committed that offense.