The opinion
PETERS, P. J.
I concur in the reasoning and conclusions contained in the opinion prepared by Mr. Justice Ward. The most debatable problem involved is whether the charged offense was a misdemeanor or a felony. The problem arises because of the unfortunate terminology employed in section 182 of the Penal Code. It provides, among other things, that when the defendants conspire to commit any act injurious to the public health or public morals “they shall be punishable in the same manner and to the same extent as in this code provided for the punishment of the commission of the said . . . act.” Thus, a conspiracy to commit a misdemeanor injurious to public morals which is made punishable by the Penal Code, constitutes but a misdemeanor (Doble v. Superior Court, 197 Cal. 556 [ 241 P. 852 ]; People v. Vanderpool, 20 Cal.2d 746 [ 128 P.2d 513 ]), but, under the same eases it is held that, if the conspiracy is to commit misdemeanors injurious to public morals that are made punishable by some code or statute other than the Penal Code, the conspiracy can constitute a felony. In recent years, with the increased codification of many phases of our law, it is purely a matter of, chance whether the misdemeanor is made punishable by the Penal Code or by some other code or statute. Whatever justification may once have existed for such a differentiation no longer exists. It would seem that the problem is one that well might be studied by the Legislature and curative legislation passed if the Legislature determines that to be desirable.
*167 So far as the alleged prejudicial misconduct of the district attorney is concerned, it should be noted that the point is raised for the first time in the appellants’ closing brief filed by permission of the court after oral argument. The result is, that in the normal course, the attorney general has had no opportunity to answer the contention. Such practice should not be condoned.
Moreover, the appellants mention the point at but one page of their brief and simply refer to the pages of the transcript where the alleged misconduct occurred. No analysis of the circumstances under which the alleged misconduct occurred is contained in the brief, nor is the fact mentioned that every time appellants’ counsel objected and asked the trial court to direct the jury to disregard the question the objection was sustained and the jury directed. Not one case is cited by appellants in support of this contention. Under such circumstances I do not feel that this court is required seriously to consider the point.
The evidence shows that appellants and Yale engaged in a form of enterprise that is subject to the strongest condemnation. They entered into a deliberate and intentional conspiracy to prey upon and deceive the union and the employers, and to prey upon prospective employees. The activities of these appellants are fully and fairly described in the majority opinion. That .they knew they were violating the law requiring a license is a reasonable inference from the evidence.
Appellants’ petition for a hearing by the Supreme Court was denied March 15, 1943.