The opinion
STONE, J.—Concurring and dissenting.
I concur in the affirmance as to the charge of falsifying public records, but I dissent from the affirmance as to the conspiracy charge.
As I view the case, the “rigged bid” was not the primary object of the conspiracy. This was a business conspiracy and, like most businesses, the objective was to make money. True, defendants conspired by means of collusive and fraudulent bidding to extract more money from the citizens of Sacramento *492 than they could have collected by honest, competitive bidding. However, the bidding was merely a means to an end, that is, it implemented the conspiracy. The collusive bidding planted the tree from which defendants hoped to pluck the fruit, but the tree had to be nurtured to continue producing. The $100 annual payment and the yearly renewal of the franchise kept the tree alive, thus enabling defendants to reap the harvest.
We learn from Fricke on California Criminal Law (8th ed.) page 124, under the title “Scope of the Conspiracy” that: “In a conspiracy to commit a crime the conspiracy continues not only until that crime has been committed but until the ultimate object of the crime has been accomplished and the liability of the conspirators, as such, extends beyond the mere consummation of the crime. (People v. Tinnin, 136 Cal.App. 301 [ 28 P.2d 951 ]; People v. Kavanaugh, 107 Cal.App. 571 [ 290 P. 594 ]; People v. Wagner, 133 Cal.App. 775 [ 24 P.2d 927 ]; People v. Lorraine, 90 Cal.App. 317 [ 265 P. 893 ].) Thus a conspiracy to commit the crime of robbery is not ended until the spoils of the robbery have been divided (People v. Dean, 66 Cal.App. 602 [ 226 P. 943 ]) or, if the crime be kidnapping for ransom, until the ransom has been paid. (People v. Wagner, 133 Cal.App. 775 [ 24 P.2d 927 ].)”
If each annual payment and renewal of the franchise was an overt act carrying out the objects of the conspiracy, as I have concluded, then the statute of limitations had not run prior to the return of the indictment. Volume 1 Witkin, California Crimes, section 237, pages 226-227, states the rule thus: “. . . although 3 years may have passed from the time of the first overt act, any subsequent overt act starts a new period running; i.e., a prosecution is not barred if any overt act was committed within the period. (See People v. Hess (1951) 104 Cal.App.2d 642, 678 [ 234 P.2d 65 ]; Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 184 [ 281 P.2d 250 ]; People v. Crosby (1962) 58 Cal.2d 713, 728 [ 25 Cal.Rptr. 847 , 375 P.2d 839 ]; 1 Wharton 420 ; 62 A.L.R.2d 1369 .) ”
The original bid gave defendants the right to an exclusive franchise, but they had to pay $100 in the exercise of that right each year and secure a franchise renewal. Therefore, each payment for each renewal was an overt act in furthering the conspiracy to “fleece” the householders.
I would affirm the judgment as to count I, and reverse the judgment as to count II.
Appellant's petition for a hearing by the Supreme Court was denied April 21,1965.