In Re Johnston

California Supreme Court Mar 29, 1935 No. Crim. 3838Published

Before: Thompson

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Holding. The court held that a conviction for conspiracy cannot stand when the jury has acquitted the defendants of all overt acts alleged in the conspiracy count, as those acts were identical to the substantive offenses of which the defendants were acquitted. Section 954 of the Penal Code does not permit a conspiracy conviction to survive when the jury has effectively found that no overt acts were committed.

Issues

Did the District Court of Appeal have jurisdiction to entertain a habeas corpus petition while an appeal was pending?
Do acquittals on substantive counts constitute a finding that no overt acts were committed for a conspiracy count when the overt acts alleged are identical to the substantive offenses?
Does Penal Code section 954 prevent a defendant from challenging a conspiracy conviction when the jury acquitted the defendant of all alleged overt acts?

Disposition. petitioners discharged from custody

Quotations verified verbatim against the opinion

“the conclusion cannot be escaped that since each crime, considered and described collectively as a single entity, is alleged to be an overt act, and as the jury fully acquitted these petitioners of each overt act thus alleged”

“we cannot construe it to mean that an indictment or information charging conspiracy is sufficient without the allegation of an overt act, nor that such an indictment or information furnishes the basis for a judgment of conviction”

THOMPSON, J.

A petition for hearing by this court was granted after decision by the District Court of Appeal, pursuant to which the petitioners were discharged in a

habeas corpus

proceeding after conviction in the superior court and while an appeal was pending in the District Court of Appeal.

The following statement of facts is taken from the opinion of the District Court of Appeal [36 Pac. (2d) 225] : “By an amended indictment filed in the superior court of Los Angeles county, petitioners were charged in several counts with having committed certain specified acts, to-wit, selling certain corporate stock in nonconformity with the Corporate Securities Act of this state. By another count it was alleged that they combined, confederated and conspired to violate the same provisions of said act, and that

[34]

in furtherance of such conspiracy certain overt acts therein enumerated were committed, which overt acts were identical with and mere repetition of the crimes charged in the preceding counts. On a trial before a jury verdict(s) were returned finding petitioners guilty of the charge last mentioned and not guilty of the offenses alleged in all other counts. From the judgments entered upon the verdict of conviction they appealed. A petition for a writ of

habeas corpus

was thereafter filed and is now before this court, praying that petitioners be discharged from custody for the reason, among others, that said acquittals constitute a finding that none of the overt acts alleged in the count of the information charging conspiracy were committed and hence in legal effect result in an acquittal of the crime charged in that count.”

It is asserted by the respondent that because petitioners had appealed from the judgment of conviction the District Court of Appeal was without jurisdiction to consider the petition for the writ of

habeas corpus

and the case of

France

In Re Johnston

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THOMPSON, J.

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