People v. MacMullen

CURTIS, J.

Defendant and three other persons were charged in an indictment presented by the grand jury of the city and county of San Francisco with the crime of conspiring to commit the crime of grand theft of a certain $500, and also as the overt act it was alleged that sum was actually stolen. The defendant pleaded not guilty. The case was set for trial and a jury impaneled to try the case. Thereafter the court, upon motion of the district attorney and without the consent of the defendant, dismissed said charge and the jury was discharged. Subsequently, a second indictment was filed' against the defendant alone, charging her simply with the crime of grand theft in taking the identical $500, which in the prior indictment she was charged

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with, taking as the overt act in furtherance of the conspiracy. To this second indictment the defendant pleaded not guilty, once in jeopardy, and former acquittal. Upon the trial under the second indictment the jury found her guilty, and upon her pleas of once in jeopardy and former acquittal the verdict of the jury was for the People and against the defendant. The defendant has appealed from the judgment and the order denying a new trial.

Defendant contends that since the theft of the sum of $500 was an essential element of the crime of conspiracy, it having been alleged in the first indictment as the overt act committed in furtherance of the conspiracy, the dismissal of said indictment after the impaneling of the jury, under the circumstances detailed above, operated as an acquittal of defendant of the overt act as the substantive offense in the second indictment. It is admitted that the proceedings taken at the first trial, in legal effect, amounted to an acquittal of defendant of the crime of conspiracy. While there is some diversity of opinion upon the question presented, the overwhelming weight of authority is that the acquittal of a defendant of the crime of conspiracy to commit a crime is not a bar to a subsequent prosecution of said defendant for the commission of said crime, even though said crime is alleged in the conspiracy indictment as the sole overt act committed in furtherance of the conspiracy. (16 Cor. Jur. 280;

Burton

v.

United States,