175 Cal. App. 2d 27 | Cal. Ct. App. | 1959
The petition of Longstreth for writ of prohibition to restrain the superior court from proceeding further upon the indictment returned against him raises the same factual matters and issues as have been previously discussed in the decision in Davis v. Superior Court, No. 18759, ante, p. 8 [345 P.2d 513] decided this day.
In addition to the reasons therein set forth we submit a further factor which dispels the force of the indictment against petitioner Longstreth.
Once the indictment is bifurcated into the unpermitted taking on the one hand and the sale and publication of the
We have previously demonstrated that defendants cannot be charged with ex post facto liability for a conspiratorial taking in which they did not participate.
In addition, petitioner Longstreth cannot properly be indicted for a conspiracy to commit an extrastate crime: the publication and sale of the book outside of the state. People v. Buffum (1953), 40 Cal.2d 709 [256 P.2d 317], establishes that the defendants in that case could not properly be convicted of a conspiracy in violation of section 182 to commit abortions in Mexico. The court said: “The object of defendants’ agreement, as alleged in the indictment, was ‘to violate section 274, Penal Code of the State of California. ’ No other unlawful purpose was stated, and defendants, of course, cannot be punished for conspiracy unless the doing of the things agreed upon would amount to a violation of section 274. The statute makes no reference to the place of performance of an abortion, and we must assume that the Legislature did not intend to regulate conduct taking place outside the borders of the state. (See People v. Chapman, 55 Cal.App. 192, 197 [203 P. 126]; Foley Bros. v. Filardo, 336 U.S. 281, 284-286 [69 S.Ct. 575, 93 L.Ed. 680]; American Banana Co. v. United Fruit Co., 213 U.S. 347, 356-357 [29 S.Ct. 511, 53 L.Ed. 826].) Similarly, section 182 of the Penal Code, standing alone, should not be read as applying to a conspiracy to commit a crime in another jurisdiction.” (P. 715.) To the same effect, State v. Bennett (1945), 81 Okla. Crim. 206 [162 P.2d 581].
Citing Hyde v. United States (1911), 225 U.S. 347 [32 S.Ct. 793, 56 L.Ed. 1114], In re Morgan (1948), 86 Cal.App. 2d 217 [194 P.2d 800], and People v. Ware (1924), 67 Cal. App. 81 at 85 [226 P. 956], respondents attempt to distinguish the Buffum case by claiming that a person outside the state may be held as a coconspirator if overt acts in the course of
Let a peremptory writ of prohibition issue.
Bray, P. J., and Wood (Fred B.), J., concurred.
A petition for a rehearing was denied November 25, 1959, and the petition of the Real Party in Interest for a hearing by the Supreme Court was denied December 23, 1959.