RODRIGUEZ v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO

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District Court of Appeal, First District, Division 1, California.

RODRIGUEZ v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.*

Civ. 12875.

Decided: May 18, 1945

Morris Oppenheim, of San Francisco, for petitioner. Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondents.

Petitioner seeks by writ of prohibition to restrain the superior court of San Francisco from trying him for a violation of section 702 of the Welfare and Institutions Code, St. 1937, p. 1033, which defines the offense of contributing to the delinquency of a minor. The offense is charged in an information containing two counts, the first charging rape, the second an offense under section 702. Upon the trial of petitioner on both counts the jury found him not guilty of rape, not guilty of attempt to commit rape, and disagreed as to the count alleging a violation of section 702. Petitioner contends that since both charges were based on the same incident the effect of the acquittal of rape and attempt to commit rape was to acquit him also of the offense charged under section 702, with the result that he has been in jeopardy and cannot be tried a second time on the charge as set forth in the information.

The first count charges a felony, to-wit, rape upon a female of the age of fourteen years who was not the wife of defendant. The second count is as follows: ‘For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count 1 hereof, and connected in its commission, the said Nicholas Rodriguez is accused * * * of the crime of misdemeanor, to-wit: Violating section 702 Welfare and Institutions Code of the State of California, committed as follows: The said Nicholas Rodriguez * * * did willfully, unlawfully and lewdly touch the private parts of [the minor child] * * *, who was then and there a female child under the age of twenty-one years, to-wit, of the age of fourteen years, with the private parts of him, the said Nick Rodriguez, all of which willful and unlawful acts and course of conduct of the said Nicholas Rodriguez as aforesaid did thereby, then and there, manifestly tend to, and did encourage, cause and contribute to the said [child] * * * becoming and remaining such a person as is described in Section 700 of said Welfare and Institutions Code, St.1939, p. 3027, to-wit, a person under the age of twenty-one years who is leading, or from any cause is in danger of leading an idle, lewd, dissolute or immoral life.’

The question is whether defendant may be tried a second time upon the second count of the information as to which the jury disagreed on the first trial. If he had been acquitted on the count, as he was upon the first count, he could not be tried again upon either count. If he had been tried upon an information charging only an offense under section 702 and the jury had disagreed, he could be tried a second time. In defendant's analysis if he did not commit the offense of rape, and the jury has exonerated of that offense, it necessarily follows that he did not commit the violation of section 702 charged in the information.

The petition for the alternative writ might have been denied upon the ground that it showed there was no entry of a plea of former acquittal or once in jeopardy, but that a motion to dismiss upon the ground of former acquittal and once in jeopardy was made and denied subsequent to acquittal on the rape charge. The record on appeal or on petition for prohibition should show definitely the entry of the plea of former acquittal or former jeopardy. People v. McFarlane, 138 Cal. 481, 71 P. 568, 72 P. 48, 61 L.R.A. 245; People v. Bennett, 114 Cal. 56, 45 P. 1013; People v. Lachuk, 5 Cal.App.2d 729, 43 P.2d 579; People v. Frank, 134 Cal.App. 211, 25 P.2d 486. A motion to dismiss is not the proper remedy. People v. Strickler, 167 Cal. 627, 140 P. 270. It would have been a relatively easy matter to have the accused enter the proper plea, but this procedure would have delayed the determination of the question involved upon its merits. The alternative writ having issued, the well-settled practice of disposing of the question, if possible, on the merits ‘rather than to dismiss it for some technical defect’ should be followed. People v. Guerrero, 22 Cal.2d 183, 185, 137 P.2d 21, 23.

The problem of inconsistent verdicts most frequently arises where there is a conviction on one count and acquittal on another. In such cases where an acquittal on one count is inconsistent with conviction on the other, it is frequently contended that the acquittal pravails and operates also as an acquittal of the count as to which there has been a conviction—that the acquittal on one count is in legal effect an acquittal on both. The problem is the same when instead of an acquittal and conviction there is an acquittal and a disagreement of the jury. In either situation the question is whether the acquittal upon one count operates as an acquittal on the other. In cases of both types the questions are, first, whether there is inconsistency, and, second, what is its effect? Even where inconsistency exists a strong argument can be made that the acquittal of one count should not work an acquittal of the other. The acquittal may represent the jury's desire to extend leniency by convicting upon one count only, rather than its finding that the defendant had not committed the offense as to which he has been acquitted.

The case herein is one in which there is no inconsistency. It is true that one who commits rape upon a minor commits an offense under section 702 as the rape necessarily and inevitably contributes to the delinquency of the minor. Acts indicating rape of a minor may be prosecuted as an offense under section 702. It is also true that a defendant may commit acts with relation to a minor girl which fall short of a completed rape and short of an attempt to commit rape, but which nevertheless constitute an offense under section 702. In the case herein the second count of the information does not charge that defendant violated section 702 in that he committed rape upon the person of a minor girl. It charges that he contributed to the delinquency of the minor by acts short of rape, but which plainly constitute an offense under section 702.

An acquittal of rape may represent the jury's view that the defendant has not completed the offense of rape, but has done enough to subject him to prosecution under section 702. A jury may disbelieve evidence as to the completion of an act of rape, but nevertheless be satisfied that the defendant has done acts attributed to him in a separate count which constitute an offense under section 702. In such event there is no inconsistency to serve as the basis for a contention that an acquittal of the rape operates as an acquittal of the section 702 count. If instead of a conviction on the section 702 count, there is a disagreement, the defendant may be tried a second time just as if he had originally been tried on the 702 count alone and his trial had resulted in a disagreement of the jury. Upon the second trial the evidence may be sufficient to convince all members of the jury that he should be convicted or acquitted of the offense charged under section 702, or that though guilty he has been previously placed in jeopardy.

Petitioner herein relies on the decision of this court in People v. Krupa, 64 Cal.App.2d 592, 149 P.2d 416. That case did not involve any problem of inconsistent verdicts returned by a single jury before whom the defendant had been tried on an information containing two counts. Nor did that case present any question as to whether an acquittal on one count should operate as an acquittal on another as to which the jury had convicted or disagreed. In that case the defendant pleaded guilty to the second count of an information charging a violation of section 702. Judgment was entered on his plea and he satisfied the sentence imposed on him. Thereafter, over his objection that the judgment on the second count was a bar, he was tried and convicted on the first count charging a violation of section 11714, Health and Safety Code, St.1939, p. 772. The judgment was reversed on appeal. There the question was whether the defendant could be convicted of the two crimes, rather than whether he was to escape punishment altogether.

The first count of the information in the Krupa case charged that defendant on January 18, 1943, hired, employed and used a minor in unlawfully transporting and carrying a quantity of cigarettes containing marihuana. The second count of the information made the same act of the defendant the basis of an offense under section 702. The majority opinion held that a violation of section 11714 necessarily and inevitably involved a violation of section 702. A defendant could not commit an offense under section 11714 without at the same time and by the same acts violating section 702, wherefore an offense under section 702 was necessarily included in every violation of section 11714. In view of the rule that a conviction or acquittal of an included offense bars a conviction for the inclusive offense, the defendant could not be held upon the first count, charging an offense under section 11714, after judgment against him on the second count based on exactly the same charging allegations as the basis of the first offense. In other words, the same alleged act of the defendant in using the minor to transport and carry marihuana was the basis of both counts. In such a case if he had been tried simultaneously on both counts and convicted on one and acquitted on the other, there would be a plain case of inconsistent verdicts. By its conviction the jury would affirm that defendant had used the minor to transport and carry marihuana; by its acquittal it would declare that he had not done so. The Krupa case stands for the rule that where an offense cannot under any circumstances be committed without at the same time committing another offense, such other offense is an included offense.

The present dase presents a different situation. Here the 702 count is based on allegations in the information which fall short of constituting rape, which is the charge in the first count. An acquittal of rape, therefore, is not inconsistent with a conviction of lesser acts which are made the basis of a second count charging an offense under section 702. Since there is no inconsistency, there is no basis for an argument that the effect of the verdict on the count of rape or attempt to commit rape is to acquite on both counts.

In People v. Stangler, 18 Cal.2d 688, 695, 117 P.2d 321, 324, the court said: ‘It is also claimed that the acquittal of the defendant on the charges of violation of section 288 of the Penal Code amounted to an acquittal on the charges of rape, because, so it is asserted, both charges depended on the same act committed by the defendant. The defendant argues that having been found guilty of rape he must necessarily have been found guilty of the charges under section 288, therefore, having been acquitted of the latter charges, he should also be deemed to have been acquitted of the former. The only acts proved were the acts of rape. It is conceivable that in some cases circumstances may be presented to support convictions on both charges relating to the same event. People v. O'Connell, 11 Cal.2d 666, 81 P.2d 939; People v. Hickman, 31 Cal.App.2d 4[11], 87 P.2d 80. But it does not follow that where the act of rape only is involved the defendant must be found guilty of both charges or neither.’

The allegations in the present information charging a violation of section 702 are not sufficient to charge the higher offense of rape but the acts alleged are of the same class of crimes as rape and it is alleged that the offense under section 702 was connected in its commission with the crime charged in the first cause of action. The procedure adopted in setting forth the several causes of action is in accord with the directions of Penal Code section 954, which provides in part: ‘A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.’

There are a few cases in California not in accord with the above rule. People v. Andursky, 75 Cal.App. 16, 241 P. 591, is a fair sample. People v. Amick, Cal.App., 118 P.2d 490, an opinion prepared by Mr. Justice Griffin, was taken over by the Supreme Court, which, without dissent, determined that Mr. Justice Griffin had correctly stated the law, and adopted such opinion as the opinion of the Supreme Court. People v. Amick, 20 Cal.2d 247, 125 P.2d 25. At pages 250, 251 of 20 Cal.2d at page 27 of 125 P.2d considering the Andursky case and People v. Day, 199 Cal. 78, 248 P. 250, the court said:

“In support of the contention appellant cites People v. Andursky, 1925, 75 Cal.App. 16, 241 P. 591, where it was held that where a defendant was charged in one count of an information with the crime of rape alleged to have been committed upon a female of the age of 15 years and in a second count of the same information, charging him with a violation of the Juvenile Court Act * * *, where it was alleged, among other things, that the defendant, on the same day charged in the first count, induced her to remain away from her home and usual place of abode and induced her to go with him to a room in a rooming house and there occupied the same bed with her and there accomplished acts of sexual intercourse with her, and the same evidence was relied on to convict on both counts, a verdict finding the defendant guilty on the first count and not guilty on the second count was inconsistent and conflicting, and insufficient to support a conviction. * * *

“It should be noted that the Andursky and Day cases were decided in 1925 and 1926 respectively. In 1927, the legislature amended several sections of the Penal Code relating to pleading of various crimes (Stats.1927, p. 1042). There was added to the last sentence of section 954 the following: ‘A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.’ We might well assume that the decision in the first two above-mentioned cases prompted or had considerable to do with the legislative determination to amend section 954 as above quoted. The remaining cases cited by appellant were however, decided subsequent to that amendment, each of which quotes from or refers to the case of People v. Day, supra, to the effect that where a person is convicted on one count of an information and acquitted on another he is entitled to an acquittal on both counts if both counts state precisely the same offense. Both of these recent cases [People v. Coltrin, 5 Cal.2d 649, 55 P.2d 1161; People v. Hickman, 31 Cal.App.2d 4, 87 P.2d 80] do not discuss the 1927 amendment to section 954.”

Referring to the Horowitz case (People v. Horowitz, 131 Cal.App., Supp., 791, 19 P.2d 874), the opinion in People v. Amick further said, 20 Cal.2d at page 252, 125 P.2d at page 28: “‘Appellants' most strongly urged argument is that the dismissal of the second count was an acquittal on that charge and that, as an acquittal, it is so inconsistent with the finding of guilt under count I that the latter cannot stand. * * * Authorities could be cited which would seem to support a reversal. People v. Andursky, 1925, 75 Cal.App. 16, 241 P. 591; People v. Puppilo, 1929, 100 Cal.App. 559, 280 P. 545. But we find more persuasive cases recognizing that such inconsistent verdicts may be caused, not by the confusion, but the mercy of the jury, of which the appellant can neither complain nor gain further advantage. (Citing cases.) Moreover, probably to avoid the result of those cases which interpret inconsistent verdicts as acts of stupidity rather than acts of leniency, section 954, Penal Code, was amended in 1927 so that it now reads' (as above quoted). ‘We conclude that even if the dismissal be regarded as an acquittal, that is no reason why the judgment of conviction, based on ample evidence, should be reversed.”’

It is indeed refreshing to note the realistic view expressed by Judge Bishop, the author of the opinion in the Horowitz case on the conduct of juries. The Supreme Court's approval (People v. Amick, supra) may be regarded as an acknowledgment of the truth of the fact that the probability of severity of punishment that may be inflicted often acts as an incentive in the determination of the guilt or innocence of an accused. ‘If the jurors paltered with their oaths and with the law, they must make their own peace with conscience. If appellant was wrongfully acquitted on the first and second counts, the error was in his favor, and he cannot be heard to complain. The fact that the jurors relieved him on two counts does not oblige this court to relieve him on the third.’ People v. Edwards, 72 Cal.App. 102, 117, 236 P. 944, 950. It is not the intent herein to hold that the jury's action in acquitting defendant on the rape charge, so far as this petition for a writ of prohibition is concerned, was an act of mercy. The entire transcript of the evidence is not before us. It is only the intent to hold herein that in any case wherein an accused is charged in several counts that the granting of leniency by the jury on one offense and a conviction or disagreement on a second offense should not necessarily be declared by an appellate court as an acquittal of the second offense. To do so would be the extension of mercy far beyond the possible intention of the jury.

California has adopted the attitude that an acquittal on one count is not an acquittal on another count unless one is necessarily included in the other. Penal Code, sec. 954; People v. Krupa, supra; People v. Kearney, 20 Cal.2d 435, 126 P.2d 612; People v. Amick, supra; People v. Horowitz, supra; People v. Stangler, supra; People v. McCollum, 116 Cal.App. 55, 2 P.2d 432; People v. Jameson, 136 Cal.App. 10, 27 P.2d 935; People v. Bevans, 19 Cal.App.2d 288, 65 P.2d 92; People v. Ranney, 123 Cal.App. 403, 11 P.2d 405; People v. Vanderbilt, 199 Cal. 461, 249 P. 867; People v. Stovall, 94 Cal.App. 635, 271 P. 576; People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978. People v. Lopez, 46 Cal.App.2d 857, 117 P.2d 10, cited by appellant, seems to hold contrary to the tests laid down herein and is incompatible with the above cited cases, but the court explained the reason therefor. In that case it was held that one charged with aiding and abetting in the commission of statutory rape may be convicted of a violation of section 702. The trial judge discounted and disbelieved part of the testimony on the aiding and abetting the rape charge. The appellate court in effect determined that the evidence, which could be considered in that case on appeal, was such that the aiding and abetting was in fact contributory to the delinquency of the minor. The court explained its realistic attitude as follows 46 Cal.App.2d at pages 858, 859, 117 P.2d at page 11: ‘There is some slight conflict in the decisions as to the law on this subject, but it is the better rule to hold that, where the acts committed tended to show the commission of the acts charged and where such acts in themselves actually constituted the lesser offense, i. e., contributing to the delinquency of the minor, a conviction had of the lesser offense should be sustained. The judgment rendered would prevent the retrial of appellant upon the original charge, for the reason that it amounted to an acquittal of the greater crime, to-wit: aiding and abetting in the commission of the crime of statutory rape, which is a felony, while the lesser offense, of which appellant was found guilty, is a misdemeanor.’

People v. Mendoza, 55 Cal.App.2d 625, 131 P.2d 622, cited by petitioner, is not in point. The defendant was charged with attempted rape and kidnapping. To the plea of ‘not guilty’ to the attempted rape charge was added a plea of once in jeopardy, based upon a conviction on a battery charge founded upon the identical state of facts alleged in the attempted rape charge. At pages 628, 629 of 55 Cal.App.2d, at page 624 of 131 P.2d, the court said: ‘Battery includes and implies an assault, and there can be no battery without an assault. * * * an analysis of the allegations contained in count one of the amended indictment herein clearly and unequivocally shows that the assault which formed the basis of the battery charge in the municipal court was the gravamen of the charge of attempted rape and was specifically pleaded in the amended indictment as well as relied upon at the trial to prove the offense there charged against appellant.’ In the Mendoza case the battery was a completed assault. In the present case the acts alleged fell short of rape, an attempt to rape or an assault with intent to commit rape. At most it was mere preparation to rape. The acts alleged in the information are in themselves denounced by the legislature irrespective of rape or one of the included offenses. Battery may be a necessary part of any physical assault but a violation of section 702 as alleged in the information is not necessarily a part of a rape. A violation of section 702 is not an included offense but a separate crime denounced primarily because of the interest of the state in the protection of infants as that word is understood in legal parlance in reference to society and the purposes of civil life. The offense designated in section 702 may be committed without resort to an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Penal Code, sec. 240.

It is not inconsistent to cite Penal Code section 954 and cases holding that a verdict of acquittal of one count shall not be deemed to be an acquittal of any other count, and to hold that upon the present record that there is no such repugnancy between the allegations of counts one and two as would justify a holding, as a matter of law, that an acquittal on the first count ipso facto is not an acquittal on the second count. The purpose of the enactment of section 954 as it now reads appears in a habeas corpus proceeding, In re Johnston, 3 Cal.2d 32, 36, 43 P.2d 541, 543, as follows: ‘The section was manifestly adopted for the purpose of enabling the prosecutor to designate or name the offenses by two or more names or designations and of making it impossible for the defendant to escape by reason of an error in designation of the crime. The proviso was written into the section for the purpose of declaring the law that a verdict apparently inconsistent shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.’

It seems to be a logical development of the law in this field that an acquittal on one charge should not operate too broadly on others. The adoption of that portion of section 954 providing that an acquittal on one count shall not be deemed an acquittal on another count, without reference to a conviction on one count being a bar to a prosecution on an identical or included offense, People v. Krupa, supra, was in fact a declaration by the legislature that even the effect of inconsistency should not be used to release the defendant on all counts wherein there has been an acquittal of only one count and no conviction. Each count must be weighed separately. A verdict of guilty should be and is generally considered a bar to further prosecution upon the theory that the defendant should not be punished twice for offenses growing out of the same facts except in cases where the elements in each case are different, such as murder and abortion and others that need not be mentioned. Justice is not served by reversing a conviction, supported by evidence satisfying a jury beyond a reasonable doubt, because the accused was acquitted by the same or another jury of a similar but not identical offense. However, the rule set forth in section 954 may not be used to violate the constitutional provision that ‘No person shall be twice put in jeopardy for the same offense.’ Calif.Const., Art. 1, sec. 13.

Up to this point the conclusion reached is based solely upon an analysis of the allegations of each count in the information and the record of acquittal, disagreement, etc., without reference to any part of the evidence. The result reached is that the acquittal of the major offense, as alleged in the information, is not per se inconsistent with a conviction or disagreement under section 702. This conclusion is fortified by the admission of petitioner that an offense under section 702 is not necessarily included in rape. It is true that the problem of consistency of inconsistency may not always be definitely determined without resort to an analysis of the evidence after a plea of former acquittal, former conviction or once in jeopardy. Such problems are heard on appeal and not on a petition for a writ of prohibition. The disposition that the trier of the facts will make of the present case is problematical. If the accused should be convicted the decision on appeal may not be foretold without comparison of the evidence presented on the first trial with that offered on a future trial.

The consistency or inconsistency of judgments in criminal cases is seldom passed upon, except on appeal. Generally when the plea of former conviction, an acquittal or once in jeopardy has been interposed, and the case tried and appealed, the record of the evidence is available. Prohibition is not usually the remedy sought because ‘as in other cases, where a court is vested with jurisdiction of the person and offense, the writ will not issue to restrain or correct mere error. So determination of the sufficiency of a defense is a matter for the court or tribunal having jurisdiction of the proceeding, and the remedy for any error in this regard is not to be found in prohibition.’ 21 Cal.Jur., p. 619.

On application for prohibition and on the hearing it has been the general custom to entertain the matter from the standpoint of the record of pleadings without the evidence. All matters tending to establish a defense are appropriate as pleas. A former judgment of conviction, acquittal or once in jeopardy (Penal Code, sec. 1016) and evidence in support thereof are admissible when such plea has been interposed and the merits thereof heard by the trial court. In Rebstock v. Superior Court, 146 Cal. 308, 80 P. 65, the writ was sought in an effort to protect an informer before the grand jury from trial under the provisions of Penal Code section 64. At pages 310, 311 of 146 Cal., at page 66 of 80 P. the court said: ‘* * * but his position, so far as the jurisdiction of the court in which the indictment is pending is concerned, is precisely the same as if he here alleged that the statute of limitations had run against the offense prior to the finding of the indictment, or that he had heretofore been acquitted of the offense, or had once been in jeopardy for such offense. His claim, if well founded in fact, is a full and complete defense to the charge against him; but it is, like the other defenses just enumerated, nothing more than a defense, and, like all other defenses, including that of a denial of the truth of the allegations of the indictment, must be presented for determination as to its sufficiency to the tribunal having jurisdiction of the proceeding, which, in the exercise of its jurisdiction, will determine as to the sufficiency of the defense, and any error committed by such court in the exercise of its jurisdiction in regard thereto can be corrected on an appeal.’ Note that the court did not examine the evidence but accepted the record simply to the effect that Rebstock had testified before the grand jury. Whether the testimony was incriminating, etc., was left to a future trial by jury. At page 311 of 146 Cal. at page 66 of 80 P., the court further said: ‘Section 1020 of the Penal Code provides that ‘all matters of fact tending to establish a defense, other than that specified in the third and fourth subdivisions of section one thousand and sixteen (former conviction or acquittal and once in jeopardy), may be given in evidence under a plea of not guilty.’ Under his plea of not guilty defendant may therefore show the facts here alleged, just as he could show a defense under the statute of limitations, and, if improperly denied his rights in this regard, may have the error corrected on appeal.'

In re Harron, 191 Cal. 457, 217 P. 728, is a habeas corpus proceeding. In that matter a portion of the reporter's transcript was considered but only for the purpose of determining whether a previous charge had been dismissed. In the Harron case it was held that if the accused does not enter a plea of once in jeopardy it is waived. People v. Grunhof, 115 Cal.App.Supp. 771, 299 P. 519; People v. Rogers, 112 Cal.App. 615, 297 P. 924; People v. Solani, 6 Cal.App. 103, 91 P. 654; People v. Fry, 137 Cal.App. 525, 31 P.2d 204.

In Huntington v. Superior Court, 5 Cal.App. 288, 90 P.2d 141, defendant had been charged with murder and convicted of manslaughter, which had been reversed. The court determined that defendant could only be tried for manslaughter but based its decision upon the record without resort to the evidence except in so far as reference was necessary to statements made in a previous trial wherein the Supreme Court had quoted certain evidence.

In Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764, a writ was issued after an analysis of thirty-three counts prohibiting the trial court from trying a thirty-fourth count, but the evidence was not considered. The same procedure was adopted in Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422.

An exception to the rule that in prohibition the evidence will not be considered in the instance of the return of an indictment without any evidence to support it. An indictment must be supported by evidence that if unexplained or uncontradicted would warrant a conviction (Penal Code, sec. 921) though such evidence may be incompetent evidence. Morehouse v. Superior Court, 124 Cal.App. 38, 12 P.2d 133. ‘It has long been settled in most jurisdictions that an indictment is invalid if it is unsupported by any evidence before the grand jury. See cases collected in 59 A.L.R. 567. If there is some evidence to support the indictment the courts will not inquire into its sufficiency (see cases collected in 59 A.L.R. 573), but the lack of any evidence conclusively establishes that the grand jury has exceeded its authority in returning an indictment.’ Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713, 715. In State ex rel. O'Brien v. Police Court of Seattle, 14 Wash.2d 340, 128 P.2d 332, 335, 141 A.L.R. 1257, the question arose whether a case had been merely stricken from the calendar or dismissed. It was held that the court had power ‘to consider the evidence and determine the facts.’ The evidence, however, consisted of a transcript of the proceedings relative to continuances. The transcript was used only to determine the reason for the continuances.

It appears that ‘testimony,’ as that word is used to indicate the oral declarations of a witness which are reduced to writing, is not admissible on a prohibition hearing except for a limited purpose, such as interpreting a written instrument, State ex rel O'Brien v. Police Court of Seattle, supra, or as in the case of determining whether there is any evidence to support an indictment, which goes to the root of the subject of jurisdiction. Greenberg v. Superior Court, supra.

The only question herein is whether the superior court is authorized by law to retry the 702 charge. If the superior court acquired jurisdiction of the defendant and the subject matter, that is, the nature of the offense, the jurisdiction is complete. Fels v. Justice's Court, 28 Cal.App.2d 739, 83 P.2d 721.

The claim that an acquittal on a charge under Penal Code section 261 is a bar to a prosecution on the offense designated in Welfare and Institutions Code, sec. 702, is not a direct but a collateral attack on the proceedings. On collateral attack the only evidence admissible are the pleadings. Other evidence is inadmissible ‘even though it might show that jurisdiction did not in fact exist.’ McAllister v. Superior Court, 28 Cal.App.2d 160, 162, 82 P.2d 462, 464, approved in People v. McAllister, 15 Cal.2d 519, 102 P.2d 1072. That the error must appear on the face of the record is the rule in civil as well as criminal proceedings. In re Keet's Estate 15 Cal.2d 328, 100 P.2d 1045; Security-First Nat. Bank v. Superior Court, 1 Cal.2d 749, 37 P.2d 69; Rico v. Nasser Bros. Realty Co., 58 Cal.App.2d 878, 137 P.2d 861.

If the information shows on its face that the superior court has jurisdiction, prohibition will not lie to prevent the trial court from acting. Hogan v. Superior Court, 16 Cal.App. 783, 117 P.2d 947. The information shows the jurisdiction of the trial court substantiated by the record presented on this petition. That should be the end of this case, but appellant, petitioner, quotes certain evidence and contends that the acquittal on count one, based on such evidence, is an acquittal on count two.

Former jeopardy is a mixed question of law and fact. It is within the jurisdiction of the court to determine whether the allegations in each count are in law the same. The questions to be decided by the jury are the identity of the parties and the identity of the facts. The first point, the legal question, is determined herein against the position of the petitioner. Whether the facts are all a part of the rape charge, or the attempt to commit that offense, or constitute a separate and distinct crime, are questions for the jury to determine upon a proper plea.

It has been suggested that the failure heretofore to enter pleas of former acquittal or once in jeopardy and the filing of this petition amount to a waiver of the right to hereafter present such pleas in the trial court. A plea is one method of presenting grounds of defense to an accusation. Penal Code, secs. 990 and 1002. It is a right accorded to all accused persons.

It is claimed, however, that a determination that jeopardy has not attached based on the record, including a portion of the evidence, becomes the law of the case, and that a plea of once in jeopardy or former acquittal would be futile. It is also claimed that the demurrer filed in this court by the Attorney General forecloses the accused from presenting further evidence to support the special pleas.

The demurrer admits the truth of the allegations of the petition, namely, that such evidence appears in the record. The demurrer does not admit the sufficiency of the evidence to establish petitioner's contention and does not admit the legal deductions from the facts alleged. Fey v. Rossi Improvement Co., 23 Cal.App. 766, 770, 139 P. 908. ‘Only those facts are admitted by a demurrer which it is necessary to allege in the pleading.’ French v. Senate, 146 Cal. 604, 607, 80 P. 1031, 1033, 69 L.R.A. 556, 2 Ann.Cas. 756. The demurrer, as demonstrated by the accompanying points and authorities, ignores the evidence and is based upon the following considerations.

A demurrer to a petition for a writ of prohibition will be tested upon the theory that allegations of evidentiary matter appearing in the petition are true, dispensing with the necessity of investigating their truth. Hevren v. Reed, 126 Cal. 219, 58 P. 536. ‘A demurrer only admits matters material.’ Riverside v. Yawman & Erbe Mfg. Co., 3 Cal.App. 691, 694, 86 P. 900, 901. If allegations in the petition are immaterial then such allegations, evidentiary or otherwise, may be treated as surplusage. Burlingame v. Traeger, 101 Cal.App. 365, 281 P. 1051. ‘* * * whatever of surplusage allegations there are to be found not necessary to a statement of said cause of action are to be disregarded. This is a general rule of pleading.’ Monk v. Ehret, 192 Cal. 186, 190, 219 P. 452, 453. The failure of the respondent in the prohibition proceedings to file a motion to strike the immaterial matter from the petition does not give an appellate court the right to weigh the evidence and pass upon its sufficiency in the face of mandate of the Constitution that jeopardy shall not attach twice, or the definite provision of the code that such question may only be passed upon by the trier of the facts. Passing upon the evidence at this time is, in effect, prejudging the evidence that may be given hereafter. Pleas of once in jeopardy, former conviction or former acquittal present ‘issues of fact.’ Penal Code, sec. 1041. Issues of fact ‘shall be tried’ (Penal Code, sec. 1042) by a jury, a right which is inviolate unless waived (Const. Calif., Art. 1, sec. 7), in which event the trial, not the reviewing, court determines the facts.

The determination of facts as a matter of first instance, by a reviewing court without statutory authority, in declaring the truthfulness or falsity of testimony reduced to writing, would be an infringement upon the duty of the trial court and a ‘direct violation of law.’ Salisbury v. Shirley, 66 Cal. 223, 228, 5 P. 104, 108. ‘* * * except for the limited extension of power granted to reviewing courts by section 4 3/434 of article 6 of the Constitution * * *, and section 956a of Code of Civil Procedure,’ Taylor v. Bunnell, 211 Cal. 601, 605, 606, 296 P. 288, 290, and the additional power granted by Rules on Appeal effective July 1, 1943, pursuant to the authority contained in Art. VI, section 1a of the California Constitution, which are not applicable herein, reviewing courts are not permitted to weigh the evidence. ‘* * * an appellate court cannot draw inferences of fact from the facts found or find an ultimate fact from probative facts unless it follows as a conclusion of law.’ 2 Cal.Jur., pp. 914, 915.

To adopt the theory that upon the entry of the plea of once in jeopardy an accused could apply to a reviewing court to pass upon the facts instead of a trial court or a jury, would be to furnish the accused with a weapon of delay and give to reviewing courts instead of jurors the right to weigh evidence and declare its truth or falsity without observing the witnesses.

Assume that under certain circumstances, in the interest of justice, testimony should be considered by a reviewing court, or that, upon the theory that this court is acting in its original jurisdiction, evidence might be admissible. Let us apply the theory to the introduction of evidence on this particular hearing and find out if it would be in the interest of justice.

If the testimony pertinent to count one in the information should be considered, this court could not draw an inference from the facts contrary to the finding of the verdict on that count. On the second count there are no findings, there is no verdict—the jury disagreed. Let it be assumed that we should find not from part but from the whole of the reporter's transcript of evidence that jeopardy has not attached. The case would be retried, and the jury instructed as a matter of law based upon such facts that jeopardy has not attached. On a second trial additional evidence not theretofore available to the state or defendant is often introduced. The evidence as a whole presents a different aspect. Would it be in the interest of justice to force the jury to determine that jeopardy had not attached if they could conscientiously determine from the new evidence that jeopardy had attached?

That a jury could determine that the completed crime was all part of rape or attempt to commit rape appears from the following testimony in addition to that quoted by Mr. Presiding Justice PETERS:

‘So he pulled down my panties, and he opened my legs, and unbuttoned his own, and got his private parts, and then he put his private parts in mine, and then I pushed away.

‘Q. You say you pushed away; did you scream at all? A. Well, I cried.

‘Q. Did you cry out ‘Help,’ or anything like that? A. I didn't cry out ‘Help,’ but I just said, ‘It hurts.’

‘Q. And did you cry, did you have tears. A. Yes, sir.

‘Q. And how long was Mr. Rodriguez with you in that position? A. Just a few minutes.

‘Q. And did you see his private parts? A. Yes, sir.

‘Q. Did you see anything on his private parts, Martha? A. Yes sir.

‘Q. What was it? A. It was a rubber.’

It was proper to grant the alternative writ, if for no other reason than to differentiate this case from the Krupa case, and to determine as a matter of law that the allegations of the offense in count one are not necessarily included in the allegations of count two. The trial court should not be restrained from proceeding with the trial. A jury should determine whether the rape and the 702 charge are identical in fact.

The demurrer to the petition is sustained and the alternative writ discharged.

I concur.

I agree with the holding in the main opinion written by Mr. Justice WARD that the petition for the writ should be denied, but my reasons for denying the writ are somewhat different from those set forth in his opinion.

The question in this case is whether the acquittal of rape and attempted rape in legal effect operates also as an acquittal of the charge of violation of § 702, as to which the jury disagreed. Petitioner contends that the acquittals have this effect for the reason that in the light of the pleadings and the evidence introduced upon his trial any other verdict upon the § 702 count except an acquittal would be inconsistent with the acquittal of rape. In petitioner's view if the jury had acquitted him of rape but convicted him of a violation of § 702 such verdicts would be inconsistent and he urges that the effect of the inconsistency would be to acquit him on both counts. He contends that the verdict of acquittal of rape has a like effect where, as here, the jury instead of convicting him on the § 702 count disagreed as to that count.

There can be no doubt that if the jury had returned a verdict expressly acquitting the defendant of a violation of § 702, he could not be tried a second time on that count. The principle that a person shall not be placed twice in jeopardy for the same offense would preclude such a retrial. The contention of petitioner in the present case is that the acquittal on the rape count is in legal effect an acquittal on the § 702 count, and that such acquittal, in like manner as an express verdict of acquittal, if such a verdict had been returned by the jury, operates to bar a retrial. The contention that the acquittal of rape has this effect is, as said above, based on the premise that any verdict except an acquittal on the § 702 count would be inconsistent with the acquittal of rape, and this is so, petitioner maintains, because the ‘only evidence that petitioner committed any violation of section 702 of the Welfare and Institutions Code is the testimony that he committed a rape upon a female under the age of consent.’

This case presents two questions: (1) Are the verdicts of acquittal and disagreement inconsistent, and (2), if so, what is the effect of the inconsistency? Is it as petitioner contends to acquit him on the charge of violating § 702?

The main opinion discusses the effect of inconsistency at some length. The author says: ‘Even where inconsistency exists a strong argument can be made that the acquittal of one count should not work an acquittal of the other.’ 158 P.2d 957. But the conclusion that petitioner may be tried a second time on the § 702 count is not placed on that ground, but, rather, on the ground that a disagreement on the § 702 count is not inconsistent with an acquittal of rape. The opinion reads: ‘The case herein is one in which there is no inconsistency.’ 158 P.2d 957. The author goes on to hold that this court in determining the claim of inconsistency in this prohibition proceeding may consider only the allegations of the information, that the evidence on the trial, brought before this court by averments of the petition for the writ which are admitted by the state's demurrer to the petition, may not be considered by this court in this proceeding; that upon the allegations of the information the charge of rape and the violation of § 702 are not per se as a matter of law inconsistent. It follows, according to Mr. Justice WARD, that this court will not grant a writ of prohibition to restrain a second trial. But, the opinion proceeds, upon a second trial on the § 702 count, if the defendant pleads double jeopardy it will be for the jury on that trial to determine whether the acquittal of rape upon the first trial constituted in legal operation an acquittal also on the § 702 count, and in passing on that plea the jury may consider the evidence, apparently the transcript of testimony introduced upon the first trial, and new evidence as well. The opinion reads: ‘It is true that the problem of consistency or inconsistency may not always be definitely determined without resort to an analysis of the evidence after a plea of former acquittal, former conviction or once in jeopardy. * * * The disposition that the trier of the facts will make of the present case is problematical.’ 158 P.2d 961. (Italics the author's.) Near the end of the discussion is the following: ‘Would it be in the interest of justice to force the jury to determine that jeopardy had not attached if they could conscientiously determine from the new evidence that jeopardy had attached?’ 158 P.2d 964.

Thus it appears that in the view of the author of the main opinion it will not finally be determined upon this prohibition proceeding whether petitioner has been in jeopardy on the § 702 count, that is, whether the acquittal of rape in legal effect was also an acquittal on the § 702 count. All this court should determine, considering only the allegations of the information, is that it cannot be said per se, as a matter of law, that the acquittal of rape was also an acquittal on the charged offenses under § 702, in the view of Mr. Justice WARD.

I am unable to agree with the proposition that in this prohibition proceeding this court is limited to a consideration of the information in determining the claim of inconsistency, and cannot consider evidence introduced upon the former trial. I also disagree that the question whether the acquittal of rape operates an an acquittal of the § 702 count is not to be determined finally in this court, but by a jury upon a second trial after petitioner in such trial makes a plea of double jeopardy. Finally, I am unable to see how ‘new evidence’ introduced upon a second trial can have any possible bearing on the question whether verdicts upon the first trial were inconsistent, and whether the effect of such inconsistency, if any, was to acquit petitioner on both counts. The answer to the problem of inconsistency depends on the proceedings of the first trial, and on those proceedings alone, and presents a question of law which this court should determine in this proceeding. The evidence which the prosecution may be in a position to produce, and would produce, upon a second trial, can have no possible bearing on whether the legal effect of the acquittal of rape on the first trial was to acquit petitioner also on the § 702 count.

There are numerous decisions which hold that the remedy by prohibition is available to prevent trial on a charge as to which the defendant has been in jeopardy by virtue of a prior acquittal or conviction. Huntington v. Superior Court, 5 Cal.App. 288, 90 P. 141; Oliver v. Superior Court, 92 Cal.App. 94, 267 P. 764; In re Berman, 104 Cal.App. 259, 286 P. 1043; In re Getzoff, 104 Cal.App. 261, 286 P. 1044; Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422. If the determination of the question of double jeopardy depends on evidence introduced on the trial in which the prior acquittal or conviction was had, then this court should consider that evidence in the prohibition proceeding. If the defendant has been in jeopardy for an offense, then the trial court is without jurisdiction to try him a second time. I know of no rule that on an application for writ of prohibition the evidence upon a prior proceeding cannot be considered if the jurisdiction of the court below to proceed depends on the state of the evidence in that proceeding. The main opinion does not finally determine whether petitioner has been in jeopardy for the charged violation of § 702, but leaves that question to be decided by the jury upon his second trial upon his making the plea of once in jeopardy upon that trial. The main opinion decides only that it cannot be held on the information that petitioner has been in jeopardy as to the offense charged under § 702. In my view the question of double jeopardy should be determined finally in this prohibition proceeding.

Cases are cited in the main opinion to the effect that on prohibition an appellate court will not normally take evidence dehors the record, that is, an appellate court will not normally consider evidence not introduced before the trial court. The petitioner herein does not ask that evidence not introduced upon his trial be considered. His contention is, precisely, that the evidence introduced on the trial should be considered, that it demonstrates as a matter of law that any verdict on the § 702 count except an acquittal is inconsistent with the acquittal on the charge of rape, and that the effect of such inconsistency is to acquit him on the § 702 count.

I agree with petitioner's contention that the evidence properly may be considered to determine whether verdicts returned upon the separate counts of an indictment are inconsistent, but I am of the view that such evidence does not demonstrate inconsistency in the present case. I am further of the view that, even if the verdicts should be held to be inconsistent, the effect of such inconsistency is not to acquit petitioner on the § 702 count, as to which the jury disagreed. The opinion of Mr. Justice WARD states that ‘even where inconsistency exists a strong argument can be made that the acquittal of one count should not work an acquittal of the other.’ 158 P.2d 957, but does not place the decision on that ground, but, rather, on the ground that considering the information the verdicts are not inconsistent, and whether they may be so in the light of the evidence cannot be determined in this prohibition proceeding.

Petitioner herein contends that the evidence upon his trial demonstrates that the acquittal of rape is also an acquittal of the § 702 charge because the only evidence to substantiate the misdemeanor charge is that such a rape was committed; that ‘the only evidence that the defendant did any act which would constitute a crime under § 702 is that on the day in question he had an act of sexual intercourse with the prosecutrix and she was under the age of consent.’

I agree with the holding in the main opinion that an acquittal of rape or attempted rape is not per se, as a matter of law, inconsistent with a conviction or disagreement on a charge of violating § 702. While every statutory rape necessarily involves a violation of § 702, in that an act of rape upon a minor is a violation of § 702, the converse is not true. Section 702 may be violated by many acts in no way related to rape or attempted rape, and without completing an act of rape a defendant may commit acts of a nature preliminary to an act of rape, and which constitute a violation of § 702, but fall short of rape or attempted rape. An acquittal of rape with a conviction of violation of § 702 may represent the jury's view that although a defendant has not completed an act of rape he has been guilty of acts which amount to a violation of § 702. People v. McAfee, 82 Cal.App. 389, 255 P. 839; People v. McCollum, 116 Cal.App. 55, 2 P.2d 432; People v. Andursky, 75 Cal.App. 16, 241 P. 591; People v. Jameson, 136 Cal.App. 10, 27 P.2d 935.

In the present case the § 702 count does not rely on a completed act of rape as the basis of the charge, but alleges that defendant ‘did wilfully, unlawfully and lewdly touch the private parts of [one] * * *, who was then and there a female child under the age of twenty-one years, to-wit, of the age of fourteen years, with the private parts of him, the said Nick Rodriguez.’ A rape completed by penetration cannot in the nature of the act be accomplished without first doing what defendant is alleged to have done in the second count. But a defendant may do that with which petitioner is charged in the second count without completing a rape, or necessarily, an attempt at rape.

In the case herein petitioner set forth the brief testimony of the prosecutrix in his petition for the writ and averred that such evidence was the only evidence bearing on his guilt. The respondent by the demurrer admitted the allegations of the petition. The testimony of the prosecutrix shows, if the jury believed her, that defendant completed the crime of rape. However, in my opinion, it was within the province of the jury to disbelieve her testimony that an act of rape had been completed, but to believe that petitioner had done what was charged against him in the second count. For this reason the acquittal of rape would not have been inconsistent with a conviction of the charged violation of § 702, and is not inconsistent with a disagreement of the jury as to that count.

Furthermore, the prosecutrix testified to other acts of a preliminary nature sufficient to constitute an offense under § 702. She testified that on the day in question she and defendant were in a room of the house where they lived and that then the following occurred: ‘Well, he took me in the bedroom—he called me in the bedroom, so I went in. He was supposed to be looking for a book or something, and I went in, and he threw me on the bed—there is a double bed there. He threw me on the bed and he held my legs and I closed them, and he slapped me on the thighs, and I closed them again and he slapped me again on the legs.’ She then testified that he raped her. The jury may have believed that these preliminary acts less than rape or an attempted rape were committed, but disbelieved the evidence that she was raped. For this reason the verdicts are in fact consistent.

People v. Krupa, 64 Cal.App.2d 592, 149 P.2d 416, does not support petitioner. I agree with Mr. Justice WARD that the decision in that case is not controlling here. It did not involve any contention as to inconsistent verdicts resulting in the defendant going free altogether, but the problem was whether he could be convicted of two offenses, a violation of § 11714, Health and Safety Code, and a violation of § 702, Welfare and Institutions Code, on exactly the same facts. It was held that in the circumstances of that case he could not be. It is true that an acquittal of either offense in that case would have been inconsistent with a conviction or disagreement as to the other. But where one count of an information charges rape, the other a violation of § 702 based not on rape but on acts which fall short of rape, an acquittal of rape is not necessarily inconsistent with a conviction of violating § 702, which, as said above, may represent the jury's finding that the defendant has not completed a rape, but that he has accomplished the violation of § 702 charged against him.

I am further of the view that, if it be assumed under the facts that the verdicts are logically inconsistent, nevertheless the legal effect of such inconsistency would not be to acquit the defendant on a charge as to which the jury has convicted or disagreed. Where a defendant has been charged in one indictment or information with two offenses, one serious and one less serious, and the jury acquits of the serious offense and finds the defendant guilty of the less serious, and the evidence shows that if any crime was committed it was the serious offense, of course the verdicts are logically inconsistent, but it does not follow that the defendant should go entirely free. It simply represents a result of the jury system. The jury has determined that although the defendant committed the serious offense, justice will best be served by leniency, which the jury grants the defendant by finding him guilty of the less serious offense. Or the jury may have found that although defendant has committed both offenses, he will suffer enough if he is punished for one offense only. Because a jury determines that a defendant shall be punished for a less serious offense than he has committed, or that he shall be punished only for one offense although he has committed two, it does not follow that because he cannot be punished twice for the same offense that the effect of the jury's leniency should be that he cannot be punished at all.

These principles have not always been recognized by the courts. (See, for example, People v. Day, 199 Cal. 78, 248 P. 250, where the court tacitly assumed that the effect of inconsistent verdicts is to acquit on both counts; People v. Andursky, 75 Cal.App. 16, 241 P. 591; People v. Puppilo, 100 Cal.App. 559, 280 P. 545; for a general discussion of the problem, see 43 Harv.L.Rev. 657; 28 Mich.L.Rev. 339; 14 Cal.L.Rev. 336; 10 So.Cal.Rev. 208.) But in 1927 the legislature, by amendments to § 954, Penal Code, gave legislative force to the rule that inconsistent verdicts should not operate to acquit on all counts. The section now provides: ‘An indictment, information, or complaint may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts. * * * A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.’ (Italics added.)

This provision was applied in People v. Amick, 20 Cal.2d 247, 125 P.2d 25; People v. Stangler, 18 Cal.2d 688, 117 P.2d 321; People v. Ranney, 123 Cal.App. 403, 11 P.2d 405 (hearing by Supreme Court denied), and People v. Horowitz, Appellate Department, Superior Court, Los Angeles, 131 Cal.App.Supp. 791, 19 P.2d 874. In People v. Stovall, 94 Cal.App. 635, 271 P. 576, and People v. Smith, 117 Cal.App. 530, 4 P.2d 268, decided after the 1927 amendment to § 954, but without express reference to it, a result consistent with the section was reached. In People v. Vanderbilt, 199 Cal. 461, 249 P. 867, and People v. Edwards, 72 Cal.App. 102, 236 P. 944, decided before the 1927 amendment, it was held that the effect of inconsistency was not to acquit on all counts.

The opinion of Mr. Justice WARD quotes at length from the decision in People v. Amick, supra. In People v. Stangler, supra, § 954 was briefly made an alternative ground of decision. The cogent language of the court in People v. Horowitz, supra, may well be quoted here. There the defendants were charged by complaint in the first counts of putting on an immoral or indecent show, and in the second counts with putting on an immoral scene or part of a show. The defendants were convicted under the first counts and the second counts dismissed. It was urged that the dismissals were tantamount to acquittals, and that the legal effect of the acquittals under the second counts was to acquit of the first counts. The court held that the dismissals were not the equivalent of acquittals and that the dismissals were proper. The court then went on to hold:

‘If we admit, for the moment only, that the dismissal was an acquittal, and that one not guilty of participating in an indecent part of a show could not be guilty of participating in an indecent show, still it does not follow that the judgments must be reversed. Authorities could be cited which would seem to support a reversal. People v. Andursky, 1925, 75 Cal.App. 16, 241 P. 591; People v. Puppilo, 1929, 100 Cal.App. 559, 280 P. 545. But we find more persuasive cases recognizing that such inconsistent verdicts may be caused, not by the confusion, but the mercy of the jury, of which the appellant can neither complain nor gain further advantage. People v. Stovall, 1928, 94 Cal.App. 635, 271 P. 576; People v. Smith, 1931, 117 Cal.App. 530, 4 P.2d 268; State v. Jackson, 1926, 121 Kan. 711, 249 P. 688; State v. Axley, 1926, 121 Kan. 881, 250 P. 284. Moreover, probably to avoid the result of those cases which interpret inconsistent verdicts as acts of stupidity rather than acts of leniency, section 954, Penal Code, was amended in 1927 so that it now reads in the part here controlling:

“An indictment * * * or complaint may charge * * * different statements of the same offense * * * under separate counts. * * * A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.' This last sentence is applied in People v. Ranney, 1932, 123 Cal.App. 403, 11 P.2d 405, 406, where a contention has been made that a conviction on two counts could not stand because of an acquittal on five counts. In part the court said: ‘Each count must stand upon its own merit. The amendment to section 954 of the Penal Code conclusively settles this controversy adversely to the contention of appellant.’ Nowhere do we find the validity of the amended section questioned; nowhere else do we find that it came to the attention of the court. We conclude that even if the dismissal be regarded as an acquittal, that is no reason why the judgment of conviction, based on ample evidence, should be reversed.' 131 Cal.App.Supp. 791, at pages 793, 794, 19 P.2d 874, 875.

In People v. Stovall, 94 Cal.App. 635, 271 P. 576, 577, (hearing by Supreme Court denied), the court said: ‘The real question—one to be mentioned again later—is whether the evidence was sufficient to establish guilt of grand theft. If it was, it is immaterial that the jury acquitted on the other charge. Perhaps a conviction should have resulted on both. Under a state of facts somewhat similar to that here presented we once said: ‘It may be conceded, for the purpose of the argument, that under the evidence the jury has as much reason for finding appellant guilty on the first and second counts as it had for finding him guilty on the third; but even so, the fact remains that the evidence was sufficient to justify the verdict on the third count, and we must conclude that the jurors were convinced of his guilt thereon. If the jurors paltered with their oaths and with the law they must make their own peace with conscience. If appellant was wrongfully acquitted on the first and second counts the error was in his favor, and he cannot be heard to complain. The fact that the jurors relieved him on two counts does not oblige this court to relieve him on the third.’ People v. Edwards, 72 Cal.App. 102, 236 P. 944.'

A very interesting case on the effect of inconsistent verdicts is People v. Vanderbilt, 199 Cal. 461, 249 P. 867, decided before the 1927 amendment to § 954. The defendant was charged in one count with sodomy, in a second with contributing to the delinquency of a minor based on the sodomy, and in a third with attempt at sodomy. He was acquitted of sodomy and convicted on the second and third counts. He contended the verdicts were totally inconsistent and that the verdicts of guilty on the contributing and attempt counts could not stand. The case was appealed to the appellate court. 49 Cal.App.Dec. 514. That court divided two to one. Judge Works wrote the majority opinion, and Judge Finlayson dissented. The majority opinion said that there was nothing in the evidence from which the jury could have concluded that, rather than the crime itself, the accused had been guilty of an attempt to commit it, ‘that if, in strictness, guilt of the completed crime was not proven, nothing was proven.’ (p. 517.) The majority held that the convictions on counts two and three could not stand in view of the acquittal on the sodomy count.

Judge Finlayson in his dissent expounded his view that the verdicts, though inconsistent, could stand. The Supreme Court adopted his opinion, with a few interpolations. That court said of the evidence: “(It will be conceded that the evidence discloses that appellant was guilty of the crime of sodomy instead of an attempt to commit sodomy.)” 199 Cal. 461, 464, 249 P. 867, 868. But the court held that nevertheless the inconsistent verdicts could stand.

This case is directly in point in the present case, and is direct authority that even if the evidence here shows a completed rape, or if disbelieved shows nothing, the inconsistent verdict of guilty or a disagreement on § 702 based on rape may stand.

Inconsistent with these cases is In re Johnston, 3 Cal.2d 32, 43 P.2d 541, where the defendants were charged with several violations of the Corporate Securities Act, St.1917, p. 673, as amended, in separate counts, and by a succeeding count with conspiracy. The overt acts alleged to have been committed in the conspiracy count were identical with and a mere repetition of the crimes charged in the preceding counts. There was a conviction on the conspiracy counts, with acquittal on all the counts preceding. It was held that the conviction on the conspiracy count could not stand, that § 954 was manifestly not adopted to save such a verdict. Perhaps conspiracy is unique in this respect. If it is not, the decision is inconsistent with the Vanderbilt case, with People v. Stangler, supra, and People v. Amick, supra, which are not cited. See, also, People v. Novo, 12 Cal.App.2d 525, 55 P.2d 915, 56 P.2d 560, where the court overlooked § 954, Penal Code.

From this review of the authorities it is apparent that even though the evidence in the present case is in such a condition that it would support a verdict of guilty of rape, and if disbelieved, would show no offense at all, nevertheless the verdicts of not guilty of rape and a disagreement (or a verdict of guilty) on the § 702 count, although inconsistent, may stand.

There is a patent contradiction in the opinion of Mr. Justice WARD. He devotes the first part of his opinion to a discussion of the legal effect of inconsistent verdicts, and there indicates that he would approve the rule that, even if the verdicts here involved are inconsistent, under § 954 of the Penal Code, both may stand. Then in disregard of this portion of his opinion he holds that on the second trial the issue must be submitted to a jury, and if it finds the verdicts to be inconsistent then defendant has been once in jeopardy.

Where the question of inconsistent verdicts comes before an appellate court on appeal, as in the situation where there is an acquittal on one count and judgment of conviction on the other, from which an appeal is taken, the questions whether the verdicts are inconsistent, and the effect thereof, are determined by the appellate court as questions of law. They were so determined in cases cited by Mr. Justice WARD. People v. Amick, 20 Cal.2d 247, 125 P.2d 25; People v. Stangler, 18 Cal.2d 688, 117 P.2d 321; People v. Vanderbilt, 199 Cal. 461, 249 P. 867; People v. Horowitz, 131 Cal.App.Supp. 791, 19 P.2d 874; People v. Andursky, 75 Cal.App. 16, 241 P. 591. These questions are no less questions of law where, as here, there is an acquittal and a disagreement, and the problem of inconsistency is presented on an application for a writ of prohibition. There are situations where the issue of double jeopardy presents questions of fact for a jury. (§ 1041, Penal Code), but the present case, in my opinion, is not one. Here petitioner contends that the evidence as a matter of law is such that any verdict except an acquittal on the § 702 count is inconsistent with the acquittal of rape. Whether the plea of double jeopardy raises a question of fact or a question of law depends on the circumstances of the case to be determined by the rules and principles applicable to issues generally. 22 C.J.S., Criminal Law, § 446, p. 695, and 14 Am.Jur. p. 959, § 284, citing cases. If the acquittal of one count is not in legal effect an acquittal on another as to which the jury disagreed, and in my view, as set forth above, it is not, then there is no violation of the double jeopardy provision of the constitution in trying the defendant a second time on that count. In such event the general rule would prevail that failure of the jury to agree on a verdict is not a bar to a subsequent prosecution. People v. Lavine, 115 Cal.App. 289, 298, 1 P.2d 496; People v. Messerly, 46 Cal.App.2d 718, 116 P.2d 781; 7 Cal.Jur. p. 954, § 96.

For the above reasons I am of the opinion that the petition for a writ of prohibition to restrain the second trial of petitioner on the § 702 count should be denied, and the alternative writ heretofore issued should be discharged.

With respect to the main question presented by this proceeding—once in jeopardy—it is my conclusion that the allegations of the petition for the writ established as a matter of law that the acquittal by the jury on the charges included in the first count (rape and attempted rape) does not bar the prosecution and conviction of the petitioner on the charge set forth in the second count (contributing to the delinquency of a minor), upon which the jury disagreed. I therefore concur in the judgment denying the writ.

It is also my conclusion that in determining the question of once in jeopardy this court may properly and should take into consideration all of the allegations of the petition including those pertaining to the state of the evidence adduced at the trial. As has been said, since the question of once in jeopardy is presented for determination on the allegations of the petition for the writ and the demurrer thereto, it must be deemed for all the purposes of this proceeding that all of the allegations of the petition are true, including those allegations purporting to set forth the evidence adduced at the trial. That being so, in deciding the question at issue this court may not, in my opinion, exclude from consideration those uncontroverted allegations relating to evidentiary matters.

Furthermore, it is my conclusion that since petitioner has seen fit to present the question of once in jeopardy by way of a proceeding in prohibition based on a petition setting forth the state of the record and of the evidence adduced at the trial, the decision of this court becomes the law of the case on that question, and therefore is final and conclusive and not open to consideration on the future trial on the second count.

As will be observed, in dealing with the subjects of inconsistent verdicts and once in jeopardy, much of the preceding opinions is devoted to a discussion of cases based on hypothetical facts. I am not in full accord with all that has been said in those respects, and it would seem to me that such discussion may lead to further confusion apparently brought about by the majority decision in the case of People v. Krupa, 64 Cal.App.2d 592, 149 P.2d 416, upon which petitioner principally relies in support of his position herein. For that reason I desire to rest my concurrence in the judgment denying the writ in the present case upon the grounds herein assigned.

WARD, Justice.