LEXSEE 78 CAL. APP. 2D 30
JULIUS LOSER, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA
Civ. No. 13360
Court of Appeal of California, First Appellate District, Division Two
78 Cal. App. 2d 30; 177 P.2d 320; 1947 Cal. App. LEXIS 1433
February 7, 1947
SUBSEQUENT HISTORY: [***1] OUTCOME: The court discharged an alternative writ
and denied the petition for a writ of prohibition.
Petitioner's Application for a Hearing by the
Supreme Court was Denied April 3, 1947. Carter, J.,
CORE TERMS: conspiracy, indictment, abortions,
and Schauer, J., Voted for a Hearing.
withdrawal, codefendant, overt act, withdraw, quit,
indictment charging, affirmative act, grand jury, venue,
PRIOR HISTORY: PROCEEDING in prohibition to confederates, formation, doctor, joined, criminal
prevent a trial on indictment in the Superior Court of conspiracy, essential element, criminal acts,
Alameda County. coconspirators, receptionist, conspirator, furtherance,
prosecuted, conspired, exculpate, actively, connect,
DISPOSITION: inform, opened
Criminal Law & Procedure > Criminal Offenses >
Inchoate Crimes > Conspiracy
PROCEDURAL POSTURE: Petitioner instituted a [HN1] A member of a conspiracy may effectively
proceeding in prohibition to prevent a trial in the withdraw from it so as to exculpate himself from guilt
Superior Court of Alameda County (California) on for the future criminal acts of his coconspirators.
indictment charging him with conspiracy and the However, one who has joined a criminal conspiracy can
commission of abortions. only effectively withdraw therefrom by some affirmative
act bringing home the fact of his withdrawal to his
OVERVIEW: Petitioner was charged with two counts confederates. Some affirmative act bringing home the
and filed a petition for a writ of prohibition. The court withdrawal to the knowledge of his confederates is
discharged an alternative writ and denied the petition. necessary; otherwise, once established, the conspiracy
The court stated that one who joined a criminal will be presumed to continue until the ends are
conspiracy could only effectively withdraw therefrom by accomplished or its abandonment established.
some affirmative act demonstrating his withdrawal to his
confederates. The court stated there was no evidence of Criminal Law & Procedure > Criminal Offenses >
any communication of an intent to withdraw from Inchoate Crimes > Conspiracy
conspiracy to any conspirator, except possibly one Criminal Law & Procedure > Jurisdiction & Venue >
coconspirator. The court stated the overt act of visiting a Venue
physician was committed in the trial court's county and [HN2] Under Cal. Penal Code § 184, conspirators may
was sufficient to fix venue in that county. be prosecuted in any county in which any overt act was
done. The indictment may charge the formation of the
78 Cal. App. 2d 30, *; 177 P.2d 320, **;
1947 Cal. App. LEXIS 1433, ***
conspiracy at a place unknown and be returned in a DOOLING
district where an overt act occurred.
HEADNOTES: CALIFORNIA OFFICIAL
REPORTS HEADNOTES [*31] [**320] Petitioner herein is joined as a
defendant in the same indictment considered in Stern v.
Superior Court, ante, p. 9 [177 P.2d 308]. Counts 2, 4
(1) Conspiracy--Criminal--Withdrawal from
and 5 of the indictment were quashed as to him.
Conspiracy. --While a member of a conspiracy may
effectively withdraw from it so as to exculpate himself There is evidence that he was actively engaged with
from guilt for the future criminal acts of his Stern in the commission of abortions, as a receptionist of
coconspirators, one who has joined a criminal conspiracy women seeking abortions, while Stern was engaged in
can only effectively withdraw therefrom by some that illegal business in Contra Costa County; that he took
affirmative act bringing home the fact of his withdrawal to his codefendant Ray in San Francisco his share of the
to his confederates. proceeds from abortions; and that he went with his
codefendant Tracy to the Oakland office of their
(2) Criminal--Withdrawal from Conspiracy.
codefendant Stock to inform Stock that Stern had opened
--The evidence before the grand jury was insufficient to
a place for [***2] the performance of abortions in
show an effective withdrawal from a conspiracy in the
Richmond. This visit to Stock is alleged as one of the
commission of abortions on part of one employed as
overt acts done in furtherance of the conspiracy.
receptionist of women seeking abortions where it merely
showed that he quit before the commission of the It is argued that the only evidence on the subject
substantive offenses because of his inability to get along shows that petitioner withdrew from the conspiracy
with the doctor. about June 1, 1946. [**321] Since petitioner's attack
on the indictment hinges almost entirely on this evidence
(3) Id.--Criminal--Venue. --Since conspirators
we quote it here verbatim:
may be prosecuted in any county in which any overt act
was done in furtherance of the conspiracy, evidence that "Q. When you first came down here to Oakland
a defendant and a codefendant went to the office of what did you and the other girl do? Were there two girls
another codefendant in a certain county to inform the then? A. Yes sir.
latter that still another codefendant had opened a place
"Q. Had Losier left? A. Yes sir.
for the performance of abortions in another county was
sufficient to support an indictment charging the "Q. When did he quit out there? A. Around the first
formation of a conspiracy in the county first mentioned, of June.
and hence to fix the venue in that county.
"Q. Why did he quit? A. He had a fuss with the
(4) Id.--Criminal--Indictment and Information. Doctor.
--An allegation in an indictment charging conspiracy that
a certain county is the county in which defendants "Q. He had a fight with the Doctor? A. Yes sir.
conspired, is not an allegation of an essential element of "Q. What was that about? A. They just couldn't get
the offense. along.
"Q. They couldn't get along? A. No sir."
Petitioner points to the fact that there is not a
Francis McCarty for Petitioner. syllable of evidence in the transcript that after he quit
Ralph E. Hoyt, District Attorney, Arthur H. Sherry, about June 1, he was actively connected in any way with
Assistant District Attorney, and John S. Cooper, Deputy the conspiracy. [*32] All of the substantive offenses,
District Attorney, for Respondent. except those quashed as to petitioner, occurred in
Oakland between August 1 and August 23, 1946. As to
all of these offenses petitioner argues that there is [***3]
JUDGES: no evidence before the grand jury to connect him with
Dooling, J. Nourse, P. J., and Goodell, J.,
concurred. (1) [HN1] A member of a conspiracy may
effectively withdraw from it so as to exculpate himself
from guilt for the future criminal acts of his
coconspirators. (15 Am.Jur., Criminal Law, § 333, p.
78 Cal. App. 2d 30, *; 177 P.2d 320, **;
1947 Cal. App. LEXIS 1433, ***
22; 15 C.J.S., Conspiracy, § 78(a), p. 1110.) However, guilty of a different conspiracy from that charged in the
one who has joined a criminal conspiracy can only indictment. We have sufficiently disposed of that
effectively withdraw therefrom by some affirmative act argument in the Anderson case.
bringing home the fact of his withdrawal to his
(3) The indictment charges the formation of the
confederates. "Some affirmative act bringing home the
conspiracy in Alameda County and petitioner insists that
withdrawal to the knowledge of his confederates is
since the only evidence on the subject is to the effect that
necessary, otherwise the conspiracy once established will
his part in the conspiracy was in Contra Costa County
be presumed to continue until the ends are accomplished
there is no evidence to support count 1 of the indictment,
or its abandonment established. ( People v. Tinnin, 136
the conspiracy [*33] charge. There is nothing in this
Cal.App. 301 [28 P.2d 951]; Coates v. United States
point. [HN2] The conspirators may be prosecuted in
(C.C.A. 9th) 59 F.2d 173. See generally 5 Cal.Jur. 423.)"
any county in which any overt act was done. (Pen.
People v. Chait, 69 Cal.App.2d 503, 514 [159 P.2d 445];
[***5] Code § 184.) The overt act done in Alameda
and cf. People v. King, 30 Cal.App.2d 185, 204 [85
County by petitioner in his visit to Dr. Stock is sufficient
P.2d 928]; People v. Ortiz, 63 Cal.App. 662, 670 [219 P.
to fix the venue in that county. (4) The allegation
that Alameda County is the county in which defendants
(2) There is no evidence of any communication conspired is not the allegation of an essential element of
of an intent to withdraw from the conspiracy to any the offense. (See Hyde v. United States, 225 U.S. 347,
fellow conspirator except Stern [***4] (if the evidence 366-367 [32 S.Ct. 793, 56 L.Ed. 1114], in which the
quoted above shows that) although petitioner was Supreme Court of the United States upheld an indictment
actively conspiring and cooperating with defendants Ray, charging a conspiracy in the District of Columbia, where
Stock and others according to the evidence. We cannot the defendants were at all times in California, but an
therefore say that there was no evidence before the grand overt act was done in the District of Columbia; and
jury to connect him with the commission of the Brown v. Elliott, 225 U.S. 392 [32 S.Ct. 812, 56 L.Ed.
substantive offenses, or to put it affirmatively that the 1136] where the indictment [**322] charged the
evidence compels the conclusion that he had effectively formation of the conspiracy at a place unknown and the
withdrawn from the conspiracy prior to their indictment was returned in a district where an overt act
As to the conspiracy count petitioner repeats the The alternative writ heretofore issued is discharged
argument made in Anderson v. Superior Court, ante, p. and the petition for a writ of prohibition denied.
22 [177 P.2d 315], that if guilty of conspiracy at all he is