Feagles v. Superior Court

California Court of Appeal Sep 29, 1970 No. Civ. 1366Published

Before: Stone

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Holding. The court held that an indictment for conspiracy must be set aside if the specific overt acts alleged in the indictment are not proven, as an overt act is an essential element of the crime and the defendant must be informed of the specific charges to satisfy due process.

Issues

Whether an indictment for conspiracy is supported by probable cause when the specific overt acts alleged were not proven, even if other unalleged overt acts were established.
Whether an overt act is an essential element of the crime of conspiracy that must be both alleged and proven.

Disposition. granted in part and discharged in part

Quotations verified verbatim against the opinion

“In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement, there must be proof of the commission of at least one of the overt acts alleged in the indictment.”

“An overt act is an essential element in the crime of conspiracy; it follows that an allegation of conspiracy is fatally defective unless an overt act is charged.”

Opinion

STONE, P. J.

Petitioner was charged with 15 different felonies, each in a separate indictment returned by the Fresno County Grand Jury on May 15, 1969, in respondent court. Numbers 1 and 15 charged conspiracy to receive stolen property and conspiracy to commit grand theft, auto, respectively; numbers 2 through 14 charged him with receiving stolen property. He was arraigned on the 15 indictments, pleaded not guilty as to each, and thereafter filed a written motion to, set aside the indictments under Penal Code section 995. Before argument, indictments 5, 9, and 11 were dismissed in the interests of justice, on motion by the district attorney. Respondent court granted petitioner’s motion to dismiss indictments 4, 6, and 14, and denied it as to indictments 2, 3, 7, 8, 10, 12, and 13, receiving stolen property. After continuing the matter and hearing further argument on conspiracy indictments 1 and 15, the motion to set aside was also denied as to these charges.

Pursuant to section 999a of the Penal Code, petitioner filed with this court a petition for a writ of prohibition predicated upon the ground that the evidence adduced at the grand jury hearing does not support indictments 1, 2, 3, 7, 8, 10, 12, 13, and 15, that said indictments were filed without reasonable or probable cause and should be dismissed. We caused an alternative writ to issue, but not because we were concerned with indictments 2, 3, 7, 8, 10, 12, and 13. An analysis of petitioner’s objection to the sufficiency of the evidence to support those counts reveals it is based for the most part upon his contention that the evidence supporting each count is largely circumstantial. Circumstantial though it is, we believe the evidence meets the test enunciated by the Supreme Court in

People

Ketchel,

59 Cal.2d 503, at page 532 [30 Cal.Rptr. 538, 381 P.2d 394]: “ ‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.] An indictment will not be set aside or a

[738]

prosecution thereon prohibited if there is some rational ground for assuming the

Feagles v. Superior Court

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STONE, P. J.

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