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District Court of Appeal, First District, Division 2, California.


Cr. 2223.

Decided: July 15, 1942

J. Bruce Fratis. of San Francisco, for appellant. Earl Warren, Atty. Gen., and Ward Sullivan, Deputy Atty. Gen., for respondent.

Appellant was tried with six other codefendants upon an information framed in four counts––the first charging kidnaping; the second assault with intent to commit rape; the third, conspiracy to commit rape; and the fourth, rape. A fifth count charged one of the defendants alone with robbery. The jury returned its verdict finding all seven defendants not guilty on count 1; three of the defendants guilty on counts 2, 3, and 4; three of them guilty on count 3 alone; one guilty on counts 2 and 3; and the one guilty on the separate count of robbery applicable to him alone. In addition to the verdict on count 1, three of the defendants, including this appellant, were found not guilty on counts 2 and 4. A motion of this appellant for a new trial was denied, he was granted probation, and prosecutes this appeal from the judgment and the order.

The single ground urged for a reversal is that, since the overt acts alleged in the conspiracy count are identical with the acts alleged to constitute kidnaping, the acquittal of the charge of kidnaping results in an acquittal of the conspiracy charge.

Briefly the facts are that the defendants met the prosecutrix late at night on a street in the city of Salinas and took her in a truck several miles into the country where the attack was made. The only material dispute in the evidence is whether the prosecutrix accompanied the defendants of her own accord, as testified to by them, or whether she was taken forcibly and against her will as she testified. The jury apparently accepted the defendants' version and for that reason found them not guilty of the kidnaping charge. There is no conflict that a forceful and mass assault was committed without the consent of the prosecutrix, and that this appellant knew that such was the purpose of his codefendants, and that he aided them in the accomplishment of this purpose.

Though the overt acts alleged in the conspiracy count relate to the alleged forceful taking of the prosecutrix from the city of Salinas to a point outside the city upon which the count charging kidnaping is based, it is clear that two separate crimes were pleaded and that the pleader intended that the act of removing the prosecutrix into the country was for the purpose of enabling the entire group to accomplish their purpose of a combined assault.

Appellant rests his case upon Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764, and similar cases holding that where identical offenses are charged in separate counts an acquittal on one count renders the verdict of guilty on the other count void. Because of these decisions section 954 of the Penal Code was amended in 1927 to provide that: “A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.” Since the amendment People v. Derenzo, 46 Cal.App.2d 411, 115 P.2d 858, and People v. Amick, 20 Cal.2d 247, 125 P.2d 25, followed the clear intent of this amendment and refused to follow the earlier cases cited by appellant. He now argues that the rulings in these cases were dicta and hence not controlling. But dicta or not the cases merely follow the plain language of the code amendment, and, in the late case of People v. Kearney, 20 Cal.2d 435, 126 P.2d 612, the Supreme Court cited the Amick case as authority for the full application of the amendment.

The judgment and order are affirmed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.