dissenting.
Because the record in this case discloses what appear to have been widespread and unlawful practices of a highly unsavory character, participated in by persons with whom this petitioner had dealings or was employed, and, as to certain activities, by himself, it is difficult to confine our thinking to the narrow legal question upon which we must rule.
As to the law generally as stated in the majority opinion I am in full accord with the principles there expressed but in careful detailing of the evidence, and as to the law which by our prior decisions should be applicable upon the facts *53which are shown either directly or by tenable inference, I am impelled to the conclusion that Mr. Justice Carter’s dissent is well taken.
The majority opinion correctly summarizes the charges averred in counts 1, 2 and 3 of the indictment. Bach and all of those counts confine their charges of criminality by petitioner to acts committed in confederation with board member Bonelli either in soliciting and collecting contributions for him and his objectives, or a like confederation “to prepare misleading, false and deceitful papers . . . with the intent to allow the same to be produced for fraudulent . . . purposes . . . for the purpose of perverting . . . justice ...”
It is my view that the entire record, fairly considered, leads unmistakably to the conclusion that at least as to the first two counts the grand jury proceedings were conducted on the theory that it was unlawful for a licensee to contribute, voluntarily or otherwise, to a campaign fund of any member of the Board of Equalization. Section 5002.6 of the Elections Code expressly covers such a situation and the evidence appears amply sufficient to establish that the petitioner’s employers were licensees, and that they did make and that petitioner participated in making, such prohibited contributions. However, for some reason which is not readily apparent, the indictment which was returned does not charge violation of, or conspiracy to violate, section 5002.6. Instead, as hereinabove indicated, it specifically charges the petitioner with (Count I) conspiring with board member Bonelli to violate section 5002.5 of the Elections Code in that they did “feloniously combine . . . and agree together to commit the crimes of soliciting, asking and receiving cash political contributions and . . . things of monetary value from persons who were named in licenses to sell alcoholic'beverages issued by the Board of Equalization”; (Count II) with conspiring with the board member and others “to do acts injurious to the public morals and to pervert and obstruct justice and the due administration of the laws; ... to use the . . . official position of membership of the Board of Equalization . . . for the private gain of said co-conspirators in that said defendants and their co-conspirators did agree among themselves that they would unlawfully collect funds from licensees and applicants for licenses of the Board of Equalization .. . ”; and (Count III) with confederation in the preparation of false papers or records, as hereinabove indicated.
I agree with the holding of the majority that the statute *54in question (Elec. Code, § 5002.5) is a valid exercise of the police power and that, as held in Bompensiero v. Superior Court (1955), 44 Cal.2d 178, 183-184 [281 P.2d 250], an indictment will not be set aside or a prosecution thereon prohibited if there is a rational ground for the conclusion that an offense has been committed and the accused is guilty of it. But the offense for which there is a rational ground of believing the defendant guilty must be the offense which is charged in the indictment. Only recently we held that “A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.” (In re Hess (1955), 45 Cal.2d 171, 174-175 [288 P.2d 5].)
Upon the record before us I see no rational ground upon which any of the charges laid against petitioner could be sustained. Conceivably, he might be convicted (since the grand jury indicted) if the evidence in the record were presented to a jury, but upon appeal (or even on habeas corpus) on such a record I think we should be bound to reverse. The conviction would no more be tenable than the conviction in the Hess ease, supra. True, the rule is different on this proceeding from what it would be on appeal, and I have already indicated my recognition of that difference by my reference to Bompensiero v. Superior Court (1955), supra, 44 Cal.2d 178, 183-184, but the record here does not withstand the Bompensiero test. I cite the Hess case to illustrate the futility of putting the state and the defendant to the expense of a trial on an indictment charging specific offenses but upon evidence which proves other offenses.
For the reasons stated I would issue the writ of prohibition.
Petitioner’s application for a rehearing was denied January 25, 1956. Carter, J., and Schauer, J., were of the opinion that the application should be granted.