I dissent.
Count I charges Bompensiero and several other persons with a general conspiracy to commit the crime of asking and receiving bribes by a public officer. Count X charges that Bompensiero and others on April 3, 1951, did ask and agree to receive a bribe. Count XI alleges that Bompensiero and others on October 25, 1952, did ask and agree to receive a bribe.
I do not believe that there was evidence sufficient to support a reasonable belief that Bompensiero was involved in a general conspiracy as alleged in Count I, nor that there was any evidence or inference connecting Bompensiero with the crime alleged in Count XI.
To show that there was sufficient evidence against petitioner the majority opinion states: “The similarity of manner in which contact was made with the restaurant owners and the bribery accomplished tends strongly to suggest a common plan of participation, although that evidence alone probably would not show Bompensiero’s connection with it. However, Berry’s discussion with Provart concerning the advisability of having Bompensiero ‘talk to’ Gillenberg suggests some reason to suppose he would agree to do so, possibly because he had acted in a similar capacity previously. Bompensiero’s statement to Gillenberg in regard to the issuance of a general license after a year implies knowledge of the manner in which Berry and his associates generally operated. Also, in each case the bribe given for a general license was either $7,000 or $7,500; the requirement that Gillenberg pay an additional $2,500 for the general license after paying $5,000 for the seasonal one, was consistent with this pattern.” (Emphasis added.)
In other words, it is held that the similarity of the plan of operation of bribery is “probably” not enough to show petitioner’s connection with it, then that connection is purportedly shown by reliance on such similarity. The majority points to only two other bits of evidence to fortify the similarity in evidence, namely: (1) That Berry’s discussion with Provart about having petitioner talk to Gillenberg, *188the person who was to pay the bribe money, indicates petitioner would talk to Gillenberg, and (2) petitioner’s statement to Gillenberg that application should be made for a general license by Gillenberg after a year. Those two items of evidence are not súffieient, either separately, together or in conjunction with the admittedly weak similarity of manner of contacting the bribers. It seems unreasonable to say that because Berry and Provart, his assistant, discussed the possibility of having petitioner speak to Gillenberg about the bribe, a conspiracy is proven either between Berry and petitioner or among petitioner and the other persons working for Berry. That a person (Berry) will talk to another person (petitioner) about committing a crime (bribery) may indicate that the former thinks the latter will be receptive to the proposition but it does not show that the latter would in fact be receptive to it or would conspire with him or with other persons in carrying out Berry’s orders. If it did it would mean that if one person thinks that another would commit a crime, then there is evidence that the other would agree to commit it. It is not only no proof of the conspiracy but it does not even raise a reasonable suspicion.
Petitioner’s statement to Gillenberg that the latter should apply for a general license after operating for one year under the seasonal license does not indicate “knowledge of the manner in which Berry and his associates generally operated.” None of the other evidence in this case makes any reference to seasonal licenses. There is not the slightest intimation in the record that it was the general practice of Berry and the other defendants to arrange for the issuance of a seasonal license, followed in one year by the issuance of a general license. Indeed, this very fact—that Gillenberg was to get a seasonal license only—is an indication of dissimilarity between the acts in which Bompensiero participated and any other acts of bribery to obtain a license. It is evidence tending logically to a belief that there was no general conspiracy involving petitioner. Gillenberg testified, “. . . this Prank B. told me that I would get a general license after operating a year. . . . He said that I would automatically get a general license and for me to go in and apply after I had operated a year which I did, you see, and, of course, I found that out not to he true after I went in to get the license.” (Emphasis added.) The logical inferences which could arise from such events would be: (1) That Prank B. thought that the population of Jacumba, the location of *189Gillenberg’s establishment, would be such in one year that he, Gillenberg, could qualify for a general license; or (2) that Frank B. believed that it was the practice of the Board of Equalization to issue a general license after one year’s operation under a seasonal license; or (3) that Frank B. believed that the $5,000 payment would satisfy Berry, and that the general license would be issued without the necessity of further bribery, i.e., that Frank B. was in woeful ignorance of “the manner in which Berry and his associates generally operated.”
The fact that an additional bribe of $2,500 was obtained before the general license was issued to Gillenberg, bringing the total bribe to $7,500, again lacks any logical reference to petitioner. Not one word of evidence was offered which directly or by inference connected petitioner with this later act of bribery. In one transaction Gillenberg paid $5,000 to obtain a seasonal license. Later, desiring a general license, he paid an additional $2,500. The “going rate” of bribery for a general license was $7,500. These facts illustrate nothing more than the time-worn and probably dubious maxim that there is “Honor even among thieves.” They indicate that Berry did not want to charge Gillenberg more than the going rate for a general license, for fear that Gillenberg would complain of the overcharge in too loud a voice. Again, I feel that it should be emphasized that no evidence was offered which in any way connected petitioner with the $2,500 bribe in October, 1952.
Even if it is assumed that there was sufficient evidence to show that petitioner conspired with Berry, there is no evidence which even remotely connects petitioner with the other persons working for Berry, and thus there is no evidence showing a general conspiracy. It is conceded by the majority that to constitute a general conspiracy, there must have been an agreement not just among Berry, petitioner and Gillenberg, but also among petitioner and the other persons working for Berry. It appears that Berry, being in a position to give or refuse licenses had various persons whom he used to solicit bribes from parties desiring licenses. There is no evidence indicating any connection among those persons other than that they occasionally worked for the same person, Berry. The only reasonable inference is that there is no agreement among those persons, since Berry, for his own protection, would keep his various henchmen in ignorance of his operations as between each other.
*190It seems clear to me, therefore, that the Grand Jury of San Diego County did not have before them sufficient evidence to justify a reasonable belief that petitioner was guilty of the crimes alleged in Counts I and XI of the indictment.
The major point remaining for discussion is whether the prosecution of Bompensiero for the offense charged in Count X is barred by the statute of limitations (Pen. Code, § 800).
The majority opinion points out two specific facts by reason of which it should have held, but did not, that such prosecution is barred by the statute of limitation: (1) “Count X
does not charge that he [Bompensiero] accepted a bribe”; (2) “. . . Bompensiero is not a ‘public official or a public employee. ’ ” Penal Code, section 800, imposes a three-year limitation on the bringing of an indictment for any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records. A six-year limitation is imposed on the bringing of an indictment for the acceptance of a bribe by a public official or a public employee.
In its decision on the two points enumerated above, the majority has employed a process of reasoning from one statute to another to arrive in the end at what it describes as a reasonable construction of Penal Code, section 800. I do not quarrel with the “reasonableness” of its construction. The point which I desire to emphasize is that this is not the only possible construction of the statute; and, as this court has repeatedly held in the past, “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. In other words, criminal statutes will not be built up ‘by judicial grafting upon legislation. . . . [I] t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. ’ ” (People v. Ralph, 24 Cal.2d 575, 581 [150 P.2d 401]; People v. Valentine, 28 Cal.2d 121, 143 [169 P.2d 1, 167 A.L.R. 675]; In re McVickers, 29 Cal.2d 264, 278 [176 P.2d 40]; In re Bramble, 31 Cal.2d 43, 51 [187 P.2d 411]; People v. Chessman, 38 Cal.2d 166, 182 [238 P.2d 1001]; Ex parte Rosenheim, 83 Cal. 388, 391 [23 P. 372]; People v. Sayre, 26 Cal.App.2d Supp. 757, 761 [70 P.2d 546].)
The question here presented is one of first impression in this state. Only one ease (State v. Bachmeyer, 247 Wis. 294 *191[19 N.W.2d 261, 263]) is cited which reaches the same result as the majority opinion reaches here. We are not bound by that ease, decided pursuant to the law of a sister state. I feel that we are bound by the long established, eminently just policy set out in the cases decided in our own state, by this very court.
The writ of prohibition sought by petitioner should be granted.
Petitioner’s application for a rehearing was denied April 13, 1955. Carter, J., was of the opinion that the application should be granted.