People v. James

PEEK, J.

Defendants James and Wilson were jointly charged with (1) the crime of conspiracy to commit forgery (Pen. Code, § 182), and (2) the crime of forgery (Pen. Code, § 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 cheek 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, 56 Am.Rep. 716], 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 at page 82, 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