PEOPLE v. LITTLE (1940)

Respondent has petitioned for a rehearing and urges that the part of our judgment which reverses the portion of the judgment of conviction of the crime of falsifying public accounts should be reconsidered.

It is urged that as Little was held guilty of the crime of conspiracy to embezzle, and also of the crime of embezzlement, he should also be guilty of the crime of falsifying public accounts as those criminal acts were committed in the “furtherance of the common object of the conspiracy” to embezzle and were “the ordinary and probable effect of the common design”. People v. Sampsell, 104 Cal.App. 431, 286 P. 434, 437, citing People v. Lorraine, 90 Cal.App. 317, 265 P. 893; People v Kauffman, 152 Cal. 331, 92 P. 861; People v. Holmes, 118 Cal. 444, 50 P. 675; People v. Lawrence, 143 Cal. 148, 76 P. 893, 68 L.R.A. 193.

We are not unmindful of this rule which is generally applied in conspiracy cases. It is well settled that “if in the consummation of an express and unlawful purpose of the conspiracy, one of the conspirators goes outside of such express purpose and kills, the other conspirators cannot escape responsibility where, as here, such killing is not an unreasonable result to be expected from the acts * which were contemplated”. People v. Cowan, 38 Cal.App.2d 231, 101 P.2d 125, 130.

In this case, and others like it, certain of the conspirators went armed to the place of the crime to commit the offense that was the purpose of the conspiracy and the killing then occurred. The fact that they went armed to commit one crime, and the further fact that one of them killed during the commission of that offense, have been considered sufficient to bring the killing within the orbit of the conspiracy and make each conspirator liable to punishment therefor.

There are reasons why this rule is inapplicable in the instant case. First, the conspiracy involved here had as its purpose the embezzlement of public funds. The embezzlements occurred during each calendar month over the period charged. Each part of the crime was complete when the money was misappropriated during a particular month. At the end of each month one conspirator filed a false statement of accounts. This was an act to conceal a former crime and was not a necessary part of that crime. Second, the filing of false statements by Mrs. Richards was not necessarily an incident of, nor was it a result to be expected and to follow from the crime of embezzlement. There are many cases of embezzlement reported in the books where there were no falsifications of public accounts by the embezzlers. Here, the crime of embezzlement was not committed through the falsification of public records nor at the time of filing the false reports. After each series of embezzlements had been completed Mrs. Richards filed a false statement of her collections. In each case relied upon by respondent the independent crime was committed during the progress of the overt act which was the purpose of the conspiracy. Here, it was not so committed but occurred after each overt act had been completed. In our opinion there should be some evidence in the record from which the reasonable inference could be drawn that Little either knew or should have known that Mrs. Richards was filing false accounts. As such evidence is entirely lacking we cannot affirm that portion of the judgment.

The petition for rehearing is denied.

PER CURIAM.