Oliver v. Superior Court

CRAIG, J.

The prosecution from the disposition of which this proceeding originated was one by indictment against the petitioners, Lawrence J. Daw and Thomas Williams. This indictment contained thirty-four counts accusing the defendants therein of grand larceny, embezzlement, and conspiracy. In counts numbers 1 to 33, inclusive, eleven different unlawful acts are charged, each in a set of three counts. In each set the first charge is grand larceny of a certain sum of money; the second, grand larceny of certain property of the same value as that charged in the first of each set; and in the third, embezzlement of both money and property.

Count 34 charges conspiracy to obtain the money and property exceeding in value $200, alleged to have been the subject of the offenses set forth in the preceding counts. It is also averred to be

“a

different statement of the same offense and of the same class of crimes and offenses as those set forth in counts 1 to 33 inclusive thereof.” Also it is alleged that in furtherance of the conspiracy the defendants committed certain overt acts which are delineated as the same offenses whose commission is charged in the first thirty-three counts of the indictment.

The defendants were tried, and the jury acquitted petitioners of the crimes charged in counts 1 to 33, in-

[96]

elusive, and failed to agree concerning count 34. Defendants Daw and Williams were convictecj, of the eléven counts of embezzlement and conspiracy and acquitted of the grand larceny charges. The petitioners further assert that the Superior Court has set the cause alleged in count 34 for trial, and they insist that this court should prohibit further prosecution thereof because had they been found guilty of the overt acts charged in the conspiracy count they would necessarily have been guilty of the grand larceny and embezzlement counts to which these overt acts respectively pertain, but that the jury having acquitted them as well of all charges of grand larceny and embezzlement, have thereby necessarily acquitted them as well of the conspiracy charge in count 34, and it is said that upon this theory petitioners have heretofore been in jeopardy for the crime of conspiracy, and that the subject matter of count 34 is now