Opinion
Rehearing Granted July 10, 1930
Appeal from Superior Court, Los Angeles County; Wm. C. Doran, Judge.
Hugh C. Dean and others were convicted of conspiracy, and a motion to set aside the indictment and to dismiss the case was granted after trial and judgment, and the People appeal.
Reversed and remanded, with directions.
Superseded by opinion 290 P. 595.
COUNSEL
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Tracy Chatfield Becker, Deputy Dist. Atty., both of Los Angeles, for the People.
C.B. Conlin and William Christensen, both of Los Angeles, for respondents.
OPINION
CRAIG, J.
An indictment charging seven persons with conspiracy to commit certain alleged offenses was attacked as insufficient by demurrer, which was overruled. After trial and judgment of conviction, a motion to set aside the indictment and to dismiss the case was granted. The people appeal from this latter order.
The indictment alleged that on or about July 15, 1929, the defendants "did wilfully, unlawfully and feloniously agree, conspire and combine together that they should sell, possess and transport intoxicating liquor fit for beverage purposes, containing more than one-half of one per cent. of alcohol by volume." In separate paragraphs it was further charged as overt acts that upon certain dates the defendants did thereafter "sell, transport and possess intoxicating liquor fit for beverage purposes, containing more than one-half of one per cent. of alcohol by volume." The respondents argued below, and here insist, principally, that the pleading was fatally defective in that it failed to allege that they "unlawfully" possessed, sold, or transported liquor, and that it did not allege that the liquor was for beverage purposes.
In the recent case of People v. La Bow et al. (Cal.App.) reported in 288 P. 880, a pleading nearly identical with that now before us was considered. It was there held in effect that, although the indictment was defective in the particulars wherein the present indictment is attacked, such defects constituted only uncertainties not amounting to a failure to state a public offense. In that case no demurrer was interposed, and therefore the motion in arrest of judgment was properly denied because by the failure to demur the right to complain of such defects was waived. Here a demurrer was interposed. The record does not indicate the grounds upon which it was based, but, in the absence of any showing by appellant to the contrary, it will be presumed that proper grounds were asserted, as urged by the motions presented at the time of trial. It follows that the demurrer was improperly overruled.
The judgment and order of dismissal are reversed, and the cause is remanded, with instructions that the lower court sustain the demurrer, and that, if the court be so advised, the matter be resubmitted to the same or to another grand jury.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.