CARTER, J. I dissent.
Because of the misleading statements and inferences contained in the majority opinion, I find it necessary to restate the facts here involved and to demonstrate that the majority has in every instance gone out of its way to “draw” not only the inferences most compatible with guilt but has manufactured inferences which it uses as a foundation for layer after layer of more manufactured inferences until the entire shaky structure collapses of its own weight. The unfortunate result of the collapse is that a man, innocent of the crime with which he was charged, must stand to answer in a .criminal court. To anyone who has read and studied the entire lengthy record in this case as I have done, the reason for the so-called inference drawing is obvious—Calhoun must be held to. answer and even though all that is necessary is a “strong suspicion” of guilt that suspicion had to be created out of whole cloth.
[33]Many unfounded statements are made in the majority opinion. The following admission in the majority opinion shows conclusively the falsity of the conclusion that Mr. Calhoun was guilty as charged: “Principally, the evidence presented to the grand jury pertains to contributions made by wholesale licensees and by retail licensees in San Diego and Los Angeles Counties. Similar operations were carried on in Orange, Riverside and San Bernardino Counties. This evidence, with the inferences reasonably to be drawn from it, shows the following pattern of activity in San Diego County. . . .” The charge against Calhoun was that of solicitation, not contribution. All of the facts stated in the majority opinion have to do with solicitation of liquor licensees by Bonelli and others. This case deals only with Calhoun. Before the conclusion of the grand jury may be upheld by this court, something must be found which ties Calhoun in with the program of solicitation carried on by Bonelli. I will show, conclusively, that while the majority opinion rambles on and on incoherently with facts proving Bonelli guilty of solicitation, there is nothing whatsoever in the record showing that Calhoun conspired with him in that program of solicitation.
Petitioner was accused by the grand jury of three counts of conspiracy. Count One accused him of the crime of conspiracy to violate section 5002.5 of the Elections Code in that he, together with William G. Bonelli, and certain others, did “wilfully, unlawfully, feloniously combine, conspire, confederate, and agree together to commit the crimes of soliciting, asking and receiving cash political contributions and contributions of things of monetary value from persons who were named in licenses to sell alcoholic beverages issued by the Board of Equalization of the State of California, said Board being duly authorized to issue said licenses; and to solicit, ask and receive cash contributions and contributions of things of monetary value from holders of licenses to sell alcoholic beverages issued by the Board of Equalization of the State of California, said Board being duly authorized to issue said licenses, for the use in campaigns for re-election of William G. Bonelli as a member from the Fourth District of the Board of Equalization of the State of California at times when William G. Bonelli was then and there a duly elected and duly authorized member of the Board of Equalization of the State of California.” In the second count, petitioner was charged with conspiring with William G. Bonelli, and others, in that [34]they did “wilfully, unlawfully, feloniously combine, conspire, confederate and agree to do acts injurious to the public morals and to pervert and obstruct justice and the due administration of the laws; whereas the said William G. Bonblli from January, 1938, until December, 1954, was . . . the duly elected member of the Board of Equalization, Fourth District, of the State of California; that while acting as such member of the Board of Equalization the said William G. Bonelli at the official meetings of the duly elected Board of Equalization and in his official capacity presented matters for the consideration of and made recommendations to the Board of Equalization in matters pertaining to the official duties of the Board of Equalization; the said William G. Bonelli, Bernard F. [sic] Calhoun . . . did wilfully, unlawfully, feloniously combine, conspire, confederate, and agree together to use the said William G. Bonelli’s official position of membership of the Board of Equalization . . . for the private gain of said co-conspirators in that said defendants and their co-conspirators did agree among themselves that they would unlawfully collect funds from licensees and applicants for licenses of the Board of Equalization for the private gain of William G. Bonelli . . . and for the private gain of all said defendants and co-conspirators.” Count Three charges petitioner, William G. Bonelli, and others, “of the crime of Conspiracy to do Acts Injurious to Public Morals and to Pervert and Obstruct Justice and the Due Administration of the Laws (Penal Code 182, subd. 5) committed as follows: The said William G. Bonelli and Bernard P. Calhoun [and others] did wilfully, unlawfully, feloniously combine, conspire, confederate and agree together to prepare misleading, false and deceitful papers, records and instruments in writing, with the intent to allow the same to be produced for fraudulent and deceitful purposes upon trials, proceedings and inquiries authorized by law, for the purpose of perverting and obstruction [sic] justice and the due administration of the law.”
It appears that this matter as it relates to petitioner must turn on a construction of section 5002.5 of the Elections Code which provides:
“Any elective State officer who is authorized by law to issue licenses or who is a member of any board or agency authorized to issue licenses, or any person seeking election to such office, board or agency . . . who directly or indirectly solicits, receives or agrees to receive any money or other thing of value, or any promise thereof, from any licensee [35]named in, or any holder of, any license issued by such officer, board or agency . . . for any political campaign of any person seeking election or reelection to the office, board or agency authorized to issue such license, is guilty of a misdemeanor.”
Section 182, subdivision 5, of the Penal Code, contains the conspiracy statute, and makes criminal a conspiracy “To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.”
Petitioner is not a state officer of any kind; he is an attorney at law. For many years petitioner has been retained by the Southern California Spirits Foundation as executive secretary, general counsel, labor relations advisor, and public relations man. The Southern California Spirits Foundation, hereinafter called Spirits Foundation, is a trade association whose membership consists of all but one of the persons, or corporations,* engaged in the wholesale liquor business in southern California. Spirits Foundation, together with Southern California Business Men’s Association, another group of those interested in the liquor business, and hereinafter called Business Men’s Association, have, for many years participated in various political campaigns where issues of interest to the industry were involved. These two groups have, throughout the years, contributed sums of money to defeat measures thought to be inimical to the welfare of the liquor industry, and to promote measures thought to be for its best interests. They have, also, contributed sums of money for the campaigns of various political candidates for local, county, state, and federal offices.
The members of Spirits Foundation were, as has been previously stated, those engaged in the wholesale liquor business in southern California. These persons voluntarily associated together for their mutual benefit. Dues were paid on a monthly basis and were computed on a gallonage sold basis. The dues’ computation was made as the gallonage was reflected in the members’ tax statements to the State of California and a 1 per cent or, later, a 1½ per cent assessment made thereon. Statements of dues owed were mailed each month to each member of the Foundation. The avowed purposes [36]of the Spirits Foundation were as heretofore set forth: to contribute funds to oppose inimical legislation; to promote favorable legislation; to aid financially in the campaigns of various candidates for divers public offices; to handle tax matters and litigation for the various members, both individually and collectively, when it affected the group as a whole. A reading of the record shows that petitioner attended all Board of Equalization meetings; that he was frequently in Sacramento; that he had copied lists of all rules, regulations, laws, relating to the industry, and changes therein, and sent these copies to the members of Spirits Foundation. The record shows that Mr. Calhoun was given carte blanche permission to make the necessary decisions regarding the disbursement of Spirits Foundation funds in line with the objectives to be achieved. It is also shown that members of Spirits Foundation met together several times each month.
The Southern California Business Men’s Association is an organization of business men who are in the hotel, restaurant, grocery, drug, distilled spirits, beer, wine and manufacturing businesses. It appears to be a trade association of representatives from all the diverse branches of the liquor industry, or businesses having any connection therewith. It was organized originally for the purpose of assisting in the repeal of the Eighteenth Amendment and has, ever since, acted as a coordinating agency of the people represented in the alcoholic beverage industry. Its source of funds is membership dues and assessments, or contributions made by the regular membership. The association issues slates of recommended candidates and publicizes the recommendations to its membership and others. Spirits Foundation is a regular member of the Business Men’s Association in its function as representative of the wholesale liquor dealers. Petitioner is a director of Business Men’s Association. Business Men’s Association was also interested in legislation affecting the interests of its membership and had special funds set up with which to oppose, or advocate such legislation, depending on its effect on the industry. Albert Y. Weigel acted as executive vice president and secretary of the association.
Research and Public Relations Fund was a fund that had been established for a number of years prior to the ones under consideration and had been set up to take care of matters affecting the liquor industry as they were reflected in legislation and to support candidates for various public offices. Prior to 1954, however, the Fund had been inactive, although [37]a small balance had been carried over from year to year. In 1954, the Fund was reactivated primarily for the purpose of defeating Proposition 3 at the general election of that year. Although five persons were authorized to sign checks thereon, each check requiring two signatures, only petitioner and Mr. Weigel signed the checks drawn on this account. During 1954 practically all of the monies in the Fund were transferred to it from Spirits Foundation.
The record shows that the members of Southern California Business Men’s Association agreed at a meeting between themselves upon a budget they considered necessary for the defeat of Proposition 3. Some of the members were not willing that any of these monies be used for that purpose until all contributions were in and the budget completed. Mr. Calhoun testified that it was for this reason, as well as for other reasons of convenience, that funds from Spirits Foundation were transferred to the Fund. Mr. Calhoun testified as an additional reason for the transfer of funds and use of the Research Fund that he did not sign checks drawn on Spirits Foundation although he directed the expenditure of its funds. The checks were signed by two officers of the Foundation and many times one or the other of these officers was unavailable; sometimes one or the other of these officers would sign checks in blank, so that if he happened to be out of town, the check would require only the one additional signature.
The record shows from a question or statement made by Mr. Sheela, Deputy District Attorney, to a witness that the grand jury proceedings were had on the theory that it was unlawful for a licensee to contribute, however voluntarily, to the campaign of any member of the board issuing the license. Mr. Sheela made this statement to a witness: “. • . I will tell you simply, you understand our problem, it is against the law for any liquor licensee to contribute to the campaign of Mr. Bonelli. ...” The pattern was set— that the prohibition of this statute extended to the donor as well as the donee.* Since there was ample evidence that Mr. Calhoun’s organization contributed to Bonelli’s campaign, it is obvious that the grand jury could have been, and undoubtedly was, under the impression that Mr. Calhoun was [38]accused of such contributions in violation of section 5002.6 of the Elections Code. This was not the case—he was charged with conspiracy to solicit—not to give.
The entire record deals with Bonelli and his program of solicitation from retail liquor licensees and inasmuch as the jury was informed that it was against the law for any liquor licensee to contribute, it is obvious that Mr. Calhoun was caught in the gigantic net spread to catch those soliciting when he, in truth and in fact, only donated—a crime with which he was not charged. The theory of the prosecution could only have had the effect of causing untold confusion in the minds of the jurors and to make it now impossible to ascertain whether the grand jury considered him guilty of conspiracy to solicit or to give. Petitioner here claimed his constitutional provilege against self-incrimination when questions were asked him concerning Mr. Bonelli, or his campaign. He also refused to answer questions concerning S. Ernest Roll, District Attorney of Los Angeles County, the Honorable Goodwin J. Knight, Governor of California, and Attorney General Edmund G. Brown.
There is not one scintilla of evidence in the record that the association of wholesale liquor dealers in Spirits Foundation was other than voluntary; there is absolutely no evidence which would show, or even tend to show, that Spirits Foundation was organized at the instance of Mr. Bonelli, or Mr. Calhoun, either singly or together, for any purpose. There is nothing in the record to show that the funds received by Spirits Foundation were given other than voluntarily, or that they were anything more than previously agreed upon membership dues of that association which had certain, definite objectives to be achieved for the common good of the members. There is also no evidence in the record that petitioner used the funds except as the membership intended they be used. Justice Edmonds states, however, that “The indictment also might be based upon the use of the funds of the Spirits Foundation and those deposited in the Research and Public Relations Fund. The grand jurors reasonably might conclude that dll of the major liquor distributors in the Los Angeles area would not acquiesce in the use of their funds for an unlawful purpose and that Calhoun, in using them for the purpose of Bonelli’s campaigns, acted as his agent rather than for 'the association.” If the grand jury so inferred, then it was guilty of the wildest possible speculation.
During the 1954 campaign a considerable amount of money was contributed toward the campaigns of a number of indi[39]viduals running for various public offices by paying portions of their campaign bills. There is evidence which shows that certain printing bills incurred by Mr. Bonelli, or those working in his behalf, were paid by checks drawn on Spirits Foundation and the Research Fund; there is also evidence that a bill for billboard advertising for Mr. Bonelli’s campaign and his book were paid by a check drawn on the Research Fund or on Spirits Foundation; there is evidence that Spirits Foundation defrayed part of the cost of printing Mr. Bonelli’s book. There is evidence that petitioner was seen in Mr. Bonelli’s office but there is no evidence that he was there other than on business for Spirits Foundation. Justice Edmonds makes much of the fact that Calhoun was seen in Bonelli’s office and that he paid some of Bonelli’s campaign expenses from that office with Spirits Foundation funds. In my opinion, the only inference to be drawn therefrom is that wholesale liquor money was being donated to pay those expenses—a crime, again, with which Calhoun was not charged. There is no evidence that Mr. Bonelli received any direct cash contributions from these two funds, or that Mr. Calhoun received any money for personal use other than his salary from the Foundation.
The statute (Elec. Code, § 5002.5) prohibits any elective state officer authorized by law to issue licenses from directly, or indirectly, soliciting, receiving, or agreeing to receive money or any other thing of value, or any promise thereof, from any licensee, for any political campaign. The statute was designed to prevent the exercise of coercion by those having the power to issue, or withhold, licenses upon those desiring them. Its construction should be no greater than necessary to subserve the purpose sought to be achieved (Gebardi v. United States, 287 U.S. 112, 123 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]). A statute should be construed with reference to its purpose and the evils to be cured thereby (14 Cal.Jur.2d § 105, p. 312; People v. Jackson, 24 Cal.App.2d 182, 198 [74 P.2d 1085]). Moreover, since the statute under consideration is also a criminal one, the one accused of its violation is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of language used therein. (Ex Parte Rosenheim, 83 Cal. 388, 391 [23 P. 372]; 14 Cal.Jur.2d § 104, p. 310; Downing v. Municipal Court, 88 Cal.App.2d 345, 349 [198 P.2d 923]; People v. Ralph, 24 Cal.2d 575, 581 [150 P.2d 401]; People v. [40]Valentine, 28 Cal.2d 121, 143 [169 P.2d 1]; People v. Showalter, 126 Cal.App. 665, 669 [14 P.2d 1034]; In re McVickers, 29 Cal.2d 264, 278 [176 P.2d 40]; In re Bramble, 31 Cal.2d 43, 51 [187 P.2d 411].)
It should be noted here that this statute prohibits only the soliciting, receiving, or agreeing to receive money, or its equivalent. It does not prohibit an individual licensee, or group of such licensees, from voluntarily contributing to such official campaign. This court, in construing such a statute, should not engraft thereon a provision which the Legislature in its wisdom did not see fit to include when enacting the measure (Gebardi v. United States, 287 U.S. 112, 123 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]) or extend it by implication (In re Straut, 125 Cal. 415, 417 [58 P. 62]; Daman v. Hunt, 47 Cal.App. 274, 280 [191 P. 376]; Bagley v. Ward, 37 Cal. 121, 133 [99 Am.Dec. 256]; Weimer v. Lowery, 11 Cal. 104, 112; Burdge v. Underwood, 6 Cal. 45; Chapman v. Aggeler, 47 Cal.App.2d 848, 853 [119 P.2d 204]; Hossom v. City of Long Beach, 83 Cal.App.2d 745, 757 [189 P.2d 787]). Penal statutes must be construed to reach no further than their words; no person can be made subject to them by implication (DeMille v. American Fed. of Radio Artists, 31 Cal.2d 139, 156 [187 P.2d 769, 175 A.L.R. 382]) and a penal statute may not, under any rule of construction, be so read as to reach further than its words (In re Twing, 188 Cal. 261, 265 [204 P. 1082]; Ex parte Kohler, 74 Cal. 38, 44 [15 P. 436]; People v. Tisdale, 57 Cal. 104, 107; Eustace v. Jahns, 38 Cal. 3, 19, 21).
Petitioner was charged with “soliciting, asking and receiving cash political contributions” from holders of liquor licenses. I find nothing in the record to substantiate this charge other than his own statement that as executive secretary of a trade association he billed members of his association for their dues. Before petitioner can be tried under this statute the evidence must show that he conspired with Mr. Bonelli, a state elective official, and others, to solicit funds from holders of liquor licenses.
In viewing this statute I find, then, that it does not prohibit the giving, but only the receiving, of campaign funds from licensees. It has been held in numerous cases that conspiracy requires, as an essential element, a concert of action of two or more persons.
The rule that conspiracy will not lie where the commission of the substantive offense requires a concert of action has [41]been recognized in the following eases; United States v. Katz (illegal liquor sales), 271 U.S. 354 [46 S.Ct. 513, 70 L.Ed. 986]; Vannata v. United States (recognizing rule but holding it inapplicable under facts), 289 F. 424; Robilio v. United States (liquor transportation; recognizing rule but holding it inapplicable under facts), 291 F. 975 (cert. den. 263 U.S. 716 [44 S.Ct. 137, 68 L.Ed. 522]); Lisansky v. United States (making false partnership income tax return; rule recognized, but held inapplicable), 31 F.2d 846, 67 A.L.R. 67 (cert. den. 279 U.S. 873 [49 S.Ct. 514, 73 L.Ed. 1008]); Norris v. United States (transportation of liquor), 34 F.2d 839; United States v. Sager (bribery), 49 F.2d 725; Ex parte O’Leary (bribery), 53 F.2d 956; Curtis v. United States (rule recognized, but held inapplicable Under facts), 67 F.2d 943; People v. Wettengel (bribery), 98 Colo. 193 [58 P.2d 579, 104 A.L.R. 1423]; Commonwealth v. Carroll (statutory rape), 8 Pa.D.&C. 271; Commonwealth v. Bricker (abortion), 74 Pa.Super. 234; Commonwealth v. Maxberry (receiving stolen goods), 13 Pa.D.&C. 371; United States v. Dietrich (bribery), 126 F. 664; United States v. New York Cent. & H. R. R. Co. (illegal rebate), 146 F. 298.
In the present case, as in the Gebardi ease, if conspiracy is held to lie, the very immunity granted by this statute is, by implication, withdrawn.
In addition to the necessity for a concert of action, and closely allied thereto, in conspiracy cases it is necessary that there be a joint intent and common purpose among those accused of conspiracy to commit a crime or achieve an unlawful end (People v. McManis, 122 Cal.App.2d 891, 900 [266 P.2d 134]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40]; People v. Griffin, 98 Cal.App.2d 1, 43, 44 [219 P.2d 519]; People v. Montgomery, 47 Cal.App.2d 1, 11 [117 P.2d 437]; People v. Eiseman, 78 Cal.App. 223, 244 [248 P. 716]; People v. Allen, 104 Cal.App.2d 402, 414 [231 P.2d 896]; People v. Steccone, 36 Cal.2d 234, 236 [223 P.2d 17]). Taking this element into consideration, it is doubtful that petitioner could, under the facts here presented, have conspired with Mr. Bonelli to receive campaign contributions. In an article in 26 Southern California Law Review, 64, 70, (Criminal Law— Conspiracy and Conspirators in California) it is said: “Conspirators reach an agreement with a common intent and purpose in mind. This concert of purpose is a necessary element of the crime. There are a number of crimes which two parties can agree to commit, but which they cannot conspire [42]to commit, since they enter the agreement with different objectives. Bribery, adultery, bigamy and subordation of perjury are crimes of this class. [Note, 104 A.L.R. 1430 (1936).] Two parties may conspire to give a bribe [People v. Griffin, 98 Cal.App.2d 1, 219 P.2d 519 (1950)).]; they may conspire to accept a bribe [People v. Savage, 15 Cal.App.2d 72, 59 P.2d 190 (1936).]; they may commit bribery, one giving and one accepting [People v. Sheffield, 108 Cal.App. 721, 293 P. 72 (1930).]; but they cannot conspire to commit bribery, one to give and one to accept. [People v. Keyes, 284 P. 1105 (Cal. 1930), in denying rehearing [sic] on 103 Cal.App. 624, 284 P. 1096.]”
In People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], this court, in denying a hearing, had this to say: “In denying the petition for hearing in this court after decision by the District Court of Appeal, Second Appellate District, Division Two, in the above-entitled cause, we deem it proper to say that we withhold our approval of so much of the opinion rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy. In the indictment before us Rosenberg and his codefendants, other than Keyes, are properly charged with a conspiracy to offer and give a bribe to said defendant, but as to defendant Keyes, himself, a criminal conspiracy cannot be properly charged.”
It appears obvious that the rule which holds that there cannot be a conspiracy between the donor and donee of a bribe stems from the essential requirement that there be a common unlawful motive. The giver expects a different type of consideration than the donee receives and hence a different motive or intent is involved. Assuming for the moment that the purposes and objectives of Spirits Foundation were specifically prohibited by a statute, it is apparent that in paying Mr. Bonelli’s campaign printing bills, Spirits Foundation had a motive entirely different from that of Mr. Bonelli in accepting the benefit. Under this rule petitioner could not have conspired with Mr. Bonelli because there is no evidence [43]whatsoever to show that he and Mr. Bonelli agreed to solicit or receive funds from liquor licensees. Here the undisputed evidence shows that petitioner was at all times employed by, and acted as agent for, Spirits Foundation which was the donor of any campaign contributions received by Mr. Bonelli from this source. There is no evidence from which an inference could be drawn that petitioner at any time acted for, or on behalf of, Mr. Bonelli in the solicitation of campaign contributions from liquor licensees. While it may be inferred that petitioner and Mr. Bonelli agreed that certain campaign contributions would be made, petitioner was always in the position of the donor and Mr. Bonelli the donee of such contributions and there could not have existed the common unlawful motive between them which is necessary to constitute a criminal conspiracy under the authorities above cited.
In People v. Buffum, 40 Cal.2d 709, 722 et seq. [256 P.2d 317], we held that a woman submitting to an abortion cannot be guilty of a conspiracy with the one committing the abortion. We said: “Section 182 of the Penal Code, which proscribes conspiracy to commit a crime, is closely analogous to section 31. Both provisions operate generally with respect to crimes defined in other statutes, and both designate persons who may be punished because of their connection with activities pertaining to such crimes. In our opinion the same reasoning which precludes the application of section 31 for the purpose of prosecuting a woman as a principal under section 274 likewise precludes the use of section 182 in prosecuting her for conspiracy to violate section 274. Since as held in the Clapp case [24 Cal.2d 835 (151 P.2d 237) (accomplice)], the Legislature has expressed an intent that a woman who consents and voluntarily submits to an abortion is not punishable under section 274, it clearly did not intend that she should be punished for conspiracy to violate that statute. Although the language of section 182, standing alone, is sufficiently broad to include any agreement to procure an abortion, the provision, like that in section 31, is general and must yield to the specific provision in section 275. Any other construction would mean that the conspiracy law could be used as a device for defeating the legislative intention of imposing a lesser penalty on a woman who violates section 275 than is prescribed for a person convicted under section 274.
“There are many cases arising under other statutes in which it has been recognized that a defendant may be liable to prosecution for conspiracy to commit a given crime even [44]though he is incapable of committing the crime itself. (See e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-225 [footnote] [60 S.Ct. 811, 84 L.Ed. 1129]; United States v. Rabinowich, 238 U.S. 78, 86 [35 S.Ct. 682, 59 L.Ed. 1211]; People v. Wood, 145 Cal. 659, 664-665 [79 P. 367]; see also cases collected in annotations in 131 A.L.R. 1110, 1114-1115; 5 A.L.R. 782, 787-791.) This rule, however, does not apply where the statutes defining the substantive offense disclose an affirmative legislative policy that the conduct of one of the parties involved shall be punished. (Gebardi v. United States, 287 U.S. 112, 121-123 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; In re Vince, 2 N.J. 443 [67 A.2d 141, 145]; see Pinkerton v. United States, 328 U.S. 640, 643 [66 S.Ct. 1180, 90 L.Ed 1489]; State v. McLaughlin, 132 Conn. 325 [44 A.2d 116, 120-121].) Similarly, the rule should not be applied where, as here, the Legislature singles out one of the parties for special treatment by enacting a statute which deals only with the conduct of that person and provides for a lesser punishment than is given to the other party.” (See also People v. Stone, 89 Cal.App.2d 853, 869 [202 P.2d 333], wherein it was held that there could be no conspiracy in such a case.) In State v. Tennyson, 212 Minn. 158 [2 N.W.2d 833, 837, 139 A.L.R. 987], the same problem was involved and it was held that the one performing the abortion and the one submitting thereto could not be conspirators. Reliance was placed on the rule that the giving and taking of bribes were separate and distinct offenses.
Here, as in the' Buffum case, the Legislature has singled out one of the parties for “special treatment” by making it a crime to solicit, receive, etc., campaign contributions from licensees. The Legislature did not see fit in the statute under consideration to make it a crime for any licensee to contribute voluntarily. Here, the “statutes defining the substantive offense disclose an affirmative legislative policy that the conduct of one of the parties involved shall be unpunished” (People v. Buffum, at page 722). In Gebardi v. United States, 287 U.S. 112, 119-120 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370], the Supreme Court had this to say: “We come thus to the main question in the case, whether, admitting that the woman, by consenting, has not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C., § 88), punishes a conspiracy by two or more persons ‘to commit any offense against the United States.’ The offense [45]which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened section 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470 [37 S.Ct. 192, 61 L.Ed. 442]. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.
“As was said in the Holte case (p. 144 [United States v. Holte, 236 U.S. 140 (35 S.Ct. 271, 59 L.Ed. 504, L.R.A. 1915D 281)]), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone. Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it. For it is the collective planning of criminal conduct at which the statute aims. The plan itself is a wrong which, if any act be done to effect its object, the state has elected to' treat as criminal, Clune v. United States, 159 U.S. 590, 595 [16 S.Ct. 125, 40 L.Ed. 269, 271]. And one may plan that others shall do what he cannot do by himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87 [35 S.Ct. 682, 59 L.Ed. 1211, 1214, 42 Am.Bankr.Rep. 255].
“But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged. . . .
“We do not rest our decision upon the theory of those [therefore cited and here omitted] cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 F. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman’s participation in those transportations which are effected by her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable [46]incident of all cases in which the woman is a voluntary agent at all, but does not punish, was automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.” (Emphasis added; see also Freeman v. United States (conspiracy to commit offense of unlawfully selling heroin), 146 F.2d 978; People v. Purcell (conspiracy to play poker), 304 Ill.App. 215 [26 N.E.2d 153]; Dodson v. United States (conspiracy to violate Mann Act) (Ky.), 215 F.2d 196; United States v. Hagan (conspiracy to harbor fugitive), 27 F.Supp. 814.)
The third count of the indictment is, apparently, based upon the fact that petitioner did not keep detailed books and records of his expenditures and that many of the checks drawn on both funds were drawn either to him personally or to cash. In some instances there were no receipts for the monies expended. Petitioner explained that many of them were drawn for travelling expenses, salary checks to various employees, bills that he had incurred, liquor bills where the liquor had been donated by Spirits Foundation to charitable organizations, to candidates who did not wish their constituents to know that a liquor organization was backing them.* Many of these expenditures were listed under the heading “Campaign Contributions.” There is again no evidence which shows, or tends to show, that Mr. Bonelli had anything to do with the manner in which petitioner’s books and records were kept. There is, further, no evidence which either shows, or tends to show, that petitioner’s books were kept with the purpose claimed by the People—that they were “misleading, false and deceitful” and so prepared “with the intent to allow the same to be produced for fraudulent and deceitful purposes upon trials, proceedings and inquiries authorized by law, for the purpose of perverting and obstructing justice and the due administration of the law.” The majority, however, rely on the “Aldine receipt,” the “setting up by Woolever of fictitious ledger accounts to evidence funds received from Bonelli and Calhoun, the checks given to the non-existent Allied Printing Company, the substitution of a new cheek for that made out by the Mexican Village to Bonelli’s campaign fund, Calhoun’s use of the Research and Public Relations Fund as a channel for [47]remittances from the Spirits Foundation, the transactions in the name of the National Democratic Club of California, and other activities which, a reasonable grand juror might infer, were done with the intent to disguise their nature.” I have heretofore discussed the “Aldine receipt.” So far as the Woolever fictitious ledger accounts are concerned, the majority opinion shows merely that Woolever himself set the account up and at Bonelli’s request charged it with three checks, one of which was a Spirits Foundation check. There is nothing to show that Calhoun knew that Woolever did no printing for Proposition 3 or that a Spirits Foundation check was charged to such an account. The only inference to be drawn from such evidence is that Bonelli was guilty of double-crossing his benefactors. There is no evidence in the record that Calhoun knew that the Allied Printing Company was not in existence and again, the only inference to be drawn is that Bonelli was guilty of a subterfuge. So far as the substitution of a new check for that made out by the Mexican Village to Bonelli’s campaign fund, that was part of the mass of evidence relating to Bonelli’s program of solicitation from retail liquor licensees and the author of the majority opinion has not succeeded in any way whatsoever in connecting Calhoun with that program or with Bonelli’s participation in that program. The case of the Mexican Village check is another instance where the author of the majority opinion has grasped at a tiny particle of immaterial evidence in the massive record and tossed it into his horrendous mess. Calhoun’s use of Spirits Foundation funds has been heretofore discussed in detail and even to the most casual reader it must be apparent that the evidence as it relates thereto does not lead to an inference that Calhoun was guilty of solicitation or of keeping false books with the purpose charged. The transactions relating to the National Democratic Club have nothing at all to do with Calhoun. Only the vaguest recollection of Mr. Kennedy in 1955 that he thought Calhoun told him in 1950 to bill that club is the basis for the statements made in the majority opinion.
The majority opinion singles out several isolated bits of evidence and from these bits builds unwarranted inference upon illogical inference. We are told that on one occasion the Aldine Printing Company billed the Business Men’s Association for $3,000 as a charge for printing some booklets; that when Weigel told Calhoun of this bill, Calhoun told him to write a check on the public relations fund for $1,500; [48]that later Calhoun received from Weigel cash for the “balance of $1507” ($1,500 plus $1,500 equals $3,000; $1,507 plus $1,500 equals $3,007) and that later Calhoun presented a receipt from the Aldine Printing Company for that amount. We are then informed that the record shows that the receipt was fictitious and did not represent a cash payment but was given to acknowledge receipt of several small checks made payable to Aldine. Then comes the inference! That it is “reasonable” to assume that these checks were from retail liquor licensees either in San Diego or Long Beach. What the record really shows is this: That Feinstein testified that Calhoun had never asked him for a fictitious invoice; that Weigel did not say he got the receipt from Calhoun but that “We got a receipt from the Aldine Company for the $1,507.35, whatever it was-”; that there is not one scrap of evidence to show that Calhoun had anything whatsoever to do with the receipt or, what is more important, that he knew of its so-called fictitious character; that there is absolutely nothing in the record to show what small checks comprised the payment.
The next bit of evidence is the Judson transaction. The author of the majority opinion doesn’t even try to tie Calhoun in 'with that. The only point in the evidence is that Bonelli had a Spirits Foundation check in his possession which he asked Judson to cash for him. There is nothing to show that Calhoun even knew of the transaction or that Judson ever heard of Calhoun. In fact the evidence is to the contrary. In the same paragraph, however, we are informed that a cheek made payable to James Garibaldi was “handled the same way.” What the record really shows is this: That when the check was delivered to Mr. Garibaldi’s office, he was out of town; that the purpose of the check was to pay Mr. Garibaldi for work to be done on Proposition 3; that Mr. Garibaldi was informed of this when he telephoned his secretary later in the day and at that time told her he would not be able to accept the employment; that she deposited the check and drew another one payable to Calhoun’s secretary at his request. From this the majority infer that Bonelli and Calhoun acted in concert to use Bonelli’s position for their private gain in the “Judson and Garibaldi transactions.”
Other evidence relied upon by the majority opinion is that Calhoun was seen in Bonelli’s office; that he there paid, with Spirits Foundation funds, certain campaign expenses in[49]curred by Bonelli. This, again, shows only that Calhoun was guilty of violating the statute respecting donations but does not have a thing to do with the crime with which he was charged. While the majority opinion covers numerous pages, a close reading thereof will show that these “bits” of evidence from which the staggering number of inferences are drawn are réiterated over and over again—and that the balance of the evidence set forth relates only to Bonelli and his program of solicitation from retail liquor licensees. Because a witness testified in 1955 that he “ thought” Calhoun directed him, in the year 1950, to bill the National Democratic Club for certain outdoor advertising for Bonelli, it is inferred that “Calhoun knew that the club would be receiving funds to be made available to Bonelli and the source of such funds” and that this is a “direct link between Calhoun and the proceeds from solicitation of retail liquor licensees. ’ ’
We are also informed that several thousands of dollars, in addition to those received from the Spirits Foundation, were deposited in the Research and Public Relations Fund by wholesale liquor licensees of whom Calhoun was not an agent and that this was “direct evidence that Calhoun ‘received’ money for Bonelli’s campaign and from his intimate participation in Bonelli’s campaign it is a reasonable inference that he acted in concert with Bonelli in doing so.” As I have said before the only inference which can logically and reasonably be drawn is that Calhoun was using wholesale liquor funds to support Bonelli’s campaign. There is not one scintilla of any kind of evidence, direct or otherwise, that he had anything to do with the solicitation of those funds; or that he conspired with Bonelli in soliciting such funds. There is no evidence whatsoever that Calhoun was not in Bonelli’s office on Spirits Foundation business. In fact, the entire record shows that he was there on Spirits Foundation business.
The majority is forced to admit that there is nothing in the record to link Calhoun with the cashing of retail liquor licensee checks by Bonelli but then illogically concludes that it may reasonably be inferred that these transactions were a “logical outgrowth of the conspiracy.”
In answer to my argument that there can be no conspiracy between the donor and the donee, the author of the majority opinion says that there “is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contribu[50]tions from both retail and wholesale liquor licensees to finance Bonelli’s political campaigns. Inferences which reasonably may be drawn from that evidence fully support the conclusion that Calhoun was connected with the general program of the Bonelli campaigns in other ways than solely as a donor to them. ’ ’ The author apparently ran out of inferences because he fails to draw any at this point. There is ample evidence to show that Calhoun was a donor of Spirits Foundation funds, but the only evidence linking him with Bonelli as a solicitor is that he was seen in Bonelli’s office. Mere association does not make a conspiracy (Dong Haw v. Superior Court, 81 Cal.App.2d 153 [183 P.2d 724]); even though direct proof of a formal understanding between parties to a conspiracy is not required (Lorenson v. Superior Court, 35 Cal.2d 49 [216 P.2d 859]).
We said in People v. Nagle, 25 Cal.2d 216, 222 [153 P.2d 344], that “It must be remembered that the evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction. Section 872 of the Penal Code provides that the defendant must be held to answer if ‘it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof.’ Section 1487, subdivision 7, of the Penal Code provides that a party is entitled to discharge upon habeas corpus proceedings where he has ‘been committed on a criminal charge without reasonable or probable cause’; ‘sufficient cause,’ therefore, means no more than that. (People v. Putnam, 20 Cal.2d 885 [129 P.2d 367]; Cleugh v. Strakosch (C.C.A. 9), 109 F.2d 330; In re Martinez, 36 Cal.App.2d 687 [98 P.2d 528].) ‘Reasonable and probable cause’ may exist although there may be some room for doubt.” (In re McCarty, 140 Cal.App. 473, 474 [35 P.2d 568]; In re Mesquita, 139 Cal.App. 91 [33 P.2d 459]; Ex parte Heacock, 8 Cal.App. 420 [97 P. 77]; Ex parte Vice, 5 Cal.App. 153 [89 P. 983].) Applying the above rules to this case, it is at once obvious that the evidence at the very most leads only to speculation that Calhoun was guilty as charged. The strongest evidence produced from which even the vaguest inference of his guilt could be drawn is that he was seen in Bonelli’s office. The author of the majority opinion confuses the issue by reciting all the evidence relating to Bonelli’s solicitation and then scrambling that evidence with evidence of Calhoun’s donation of Spirits Foundation funds. Taking the scrambled mess as a whole [51]it appears clear to me that it would not lead a “man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.” There is much more than some room for doubt here—there is only speculation that Calhoun is guilty as charged. “Speculation” certainly does not measure up to any definition of probable cause with which I am familiar.
The majority opinion here depicts with unusual force the merit in the following quotation from Mr. Justice Jackson’s concurring opinion in Krulewitch v. United States, 336 U.S. 440, 445 et seq. [69 S.Ct. 716, 93 L.Ed. 790]: “The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.
“The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. . . .
“An accused, under the Sixth Amendment, has the right to trial ‘by an impartial jury of the State and district wherein the crime shall have been committed. ’ The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.
“The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where the Government institutes mass trials. . . .
“A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate. . . .
[52]“There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evil-doers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purposes served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.”
I have heretofore shown that the statute (Elec. Code, § 5002.5) proscribes only the solicitation or receipt of campaign contributions from licensees and not the giving thereof. I have also carefully examined the record and have failed to find any evidence to substantiate the charge that petitioner conspired with Mr. Bonelli in either soliciting or receiving funds for Mr. Bonelli’s campaign. I find only that petitioner, as executive secretary of a trade association, Spirits Foundation, received dues from its members, a percentage of which funds were used voluntarily to pay printing and advertising bills for Mr. Bonelli in his campaign for reelection to the State Board of Equalization. Inasmuch as the Legislature did not see fit to make the voluntary donation of such funds a crime under this statute, it follows that there is no evidence connecting petitioner with the crimes charged in the indictment and the writ should therefore issue.
I would, therefore, let the writ of prohibition issue as prayed for.
The one wholesaler not a member is a distillery. This distillery desired membership but was not acceptable to the Foundation as a member because it either sold direct to the retailers or desired to do so. This procedure would eliminate the wholesaler.
While section 5002.6 of the Elections Code prohibits a licensee from making a contribution to the political campaign of a person seeking election to the '‘office, board or agency authorized to issue such license,” this section is not involved here.
It is inferable that some of these cash cheeks were used to pay printing bills for Mr. Bonelli’s campaign.