THE PEOPLE, Respondent, v. H. MILLER, Appellant, 82 Cal. 107

Sharpstein, J. Appellant and his wife were tried and convicted of criminal conspiracy. The information upon Which they were tried states that “H. Miller and Minnie Miller, being then and there husband and wife, are accused by the district attorney of the said county [San Diego] by this information of the crime of criminal conspiracy.” The minutes of the court show that after the defendants had been found guilty by the verdict of a jury, and their motion for a new trial denied, they appeared for sentence, when the following proceedings were had.

We copy from the minutes: “The court at this time sentences Minnite Miller to a fine of one dollar, which the court will pay. The court at this time sentences H. Miller to be imprisoned in the county jail of San Diego county for a term of one year.” Defendant H. Miller appeals. His sole contention here is, that the information does not accuse him of any offense, because a man and his wife, being in law but one person, no prosecution for a conspiracy can be maintained against them.

That such was the rule of the common law, we cannot doubt, and we find nothing in the code or statutes of this state to indicate an intention of the legislature to change it. The defendants could only be tried upon an indictment or information which accused them of a criminal offense; a trial upon an information which does not. accuse them of a criminal offense was wholly unauthorized, and the judgment must be reversed. Judgment reversed, with directions to the court below to discharge appellant from imprisonment. Works, J., and McFarland, J., concurred. Beatty, C. J.

The foregoing judgment and decision is hereby approved, and remittitur ordered to issue forthwith. Fox, J., and Paterson, J., concurred.