PEOPLE v. CLAPP ET AL

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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. CLAPP ET AL.

Cr. 3752.

Decided: December 10, 1943

A. H. McConnell and Archie Cope, both of Long Beach, for appellants. Robert W. Kenny, Atty. Gen., T. G. Negrich and Frank Richards, Deputy Attys. Gen., and Fred N. Howser, Dist. Atty., and Jere J. Sullivan, Deputy Dist. Atty., both of Los Angeles, for respondent.

Defendants and appellants were found guilty by a jury of the crime of abortion, a violation of section 274 of the Penal Code. The appeal is from the judgment and the order denying a motion for a new trial.

The record reveals the facts to be as follows: Thelma Huntley, a married woman, called at the office of defendants, where she informed them of her condition and her wishes with regard thereto. Defendants, who are chiropractors, arranged to visit her home the next day and perform the operation. On the morning of the next day Thelma Huntley visited her mother–in–law Mrs. Alice Huntley; Mrs. Alice Thurman, Mrs. Alice Huntley's daughter, arrived later. There is nothing to indicate that this meeting was expected or prearranged. From there the three of them drove to Thelma Huntley's home. The two defendants arrived shortly thereafter and in the presence of Mrs. Alice Huntley and her daughter, Mrs. Alice Thurman, the operation was performed by the two defendants.

The three women above named testified for the prosecution. Defendants introduced no evidence.

It is urged on appeal, first, that a conviction cannot be had upon the uncorroborated testimony of an accomplice; second, that where there is no conflicting evidence as to whether a witness is an accomplice, and that fact stands undisputed in the testimony, the court should as a matter of law instruct the jury that such witness is an accomplice; and third, that “when there is a reasonable doubt as to a witness being an accomplice, the jury should resolve that doubt in favor of the defendant and find such witness to be an accomplice and the court should as a matter of law so instruct the jury”.

In support of the last–mentioned contention People v. Sheffield et al., 108 Cal.App. 721, 293 P. 72, 77, is cited as authority. The opinion does not so hold. Nor indeed is there any authority for such a rule. The phrase “reasonable doubt” is out of place in the instructions except as provided by law. Section 1096a, Penal Code.

The court fully instructed the jury on the law regarding accomplices including the precautionary advice provided for in subdivision 4 of section 2061 of the Code of Civil Procedure. The court did not instruct the jury that Thelma Huntley or either of the other two women was an accomplice, but left that question for the jury to determine. It is the court's refusal to give defendants' requested instructions on this subject that furnishes appellants' principal contention on appeal.

On the other hand, it is respondent's contention that “the test for determining who are accomplices is the same in an abortion case as in any other case”. Section 1108 of the Penal Code provides that “Upon a trial for procuring or attempting to procure an abortion * * * the defendant cannot be convicted upon the testimony of the woman * * * unless she is corroborated by other evidence.” But, respondent argues, “It does not follow that, because a woman's testimony must be corroborated by reason of section 1108 of the Penal Code, she, therefore, stands in the relation of an accomplice to the defendant charged with the commission of the abortion. Although the testimony of a prosecutrix must be corroborated in order to convict, the reason for requiring the corroboration is predicated on an entirely different hypothesis from that falling within the rule relating to an accomplice's testimony.

“Prior to 1915 an accomplice was not defined in our Penal Code. Therefore we must be guided by the present definition, which declares an accomplice is one liable for prosecution for the identical offense charged against the defendant on trial. [Section 1111.] It will be observed that our code sections on abortion, as above referred to, provide that the person performing or attempting an abortion, and the woman upon whom the abortion is performed or attempted, shall be guilty of separate and distinct crimes. Therefore, the woman could not be prosecuted for the identical offense charged against the defendant and hence is not an accomplice as defined in our code. (Italics included.)

“The general rule is that where the acts of different participants are declared by statute to constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime.

“A common example may be found in perjury cases, where it is held that the suborner is not an accomplice of the suborned. (People v. Nickell, 22 Cal.App.2d 117, at [page] 124 [70 P.2d 659].) * * * People v. Davis, 210 Cal. 540, at [page] 557 [293 P. 32], * * *

“Therefore, the testimony of the woman upon whom the abortion was committed under Section 1108 of the Penal Code may be sufficient to supply the corroboration of an accomplice under section 1111 of the Penal Code, and vice versa.

“Since the amendment to section 1111 of the Penal Code in 1915 defining an accomplice, we can see no distinction in principle between the Davis case, supra, and the instant case. If the giver of a bribe is not an accomplice of the receiver of the bribe, it logically follows that the woman who solicits or permits another to commit an abortion upon her is not an accomplice of the person performing the abortion, for the offenses are not identical, but separate and distinct offenses under sections 274 and 275 of the Penal Code.

“There are other provisions contained in our code sections in which corroboration is required to sustain a conviction (sections 1103a, 1108 and 1110 of the Penal Code), but this does not mean that the testimony of a victim should be viewed with distrust. It is competent for the legislature to provide in what cases corroboration may be required, whether the person is an accomplice or not.”

That respondent's preliminary statement, viz.: the test for determining who are accomplices is the same in an abortion case as in any other case, is correct, there can be no question. Indeed the test is the same in all cases. It is from the failure to determine correctly what the test is, and then apply it, that confusion abounds. And that failure results from an improper interpretation of section 1111 of the Penal Code. Respondent's argument is afflicted with the same fallacy that persists in the decisions hereinafter referred to. Respondent argues, as noted above, that the person performing an abortion and the woman upon whom the abortion is performed shall be guilty of separate and distinct crimes, therefore the woman could not be prosecuted for the identical offense committed by the one who performs the operation. Such an unqualified statement is not the law. It is conceivable that both could be prosecuted under either statute, or it is conceivable that the subject of an abortion could be entirely innocent of any wrongdoing. The fact that certain acts are defined as crimes under different sections of the Penal Code is unimportant, indeed entirely immaterial, in determining the meaning and interpretation of section 1111. Nor is there a general rule as contended by respondent “that where the acts of different participants are declared by statute to constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime”. No authority is cited by respondent in support of such contention nor can any be found. But to the contrary, as will hereafter appear, all participants in any crime may be accomplices. The question as to who are accomplices must be determined and can only be determined properly by reference to related provisions of the code. They are as follows. Section 6 of the Penal Code provides that, “No act or omission, * * * is criminal or punishable, except as prescribed or authorized by this code, * * *.” (Italics added.) Section 15 provides that, “A crime or public offense is an act committed or omitted in violation of a law * * *.” (Italics added.) Section 30 provides that, “The parties to crimes are classified as: 1. Principals; and, 2. Accessories.” Section 31 provides that, “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, * * * are principals in any crime so committed.” Section 971 provides: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.” Section 654 provides that, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; * * *”. And to complete the quotations to be considered, section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

From a careful consideration of section 1111 it is at once evident that the legislature in defining an accomplice did not contemplate an all–purpose definition but limited the definition to the single purpose of identifying a class of witnesses that, in any event, must be corroborated. In that regard it is provided that if the witness is “liable to prosecution for the identical offense charged against the defendant on trial”, then, and in that event, such witness must be corroborated to warrant a conviction. The fact that certain sections, for example, section 1108, require corroboration and allow no exceptions is of no significance in determining the meaning and application of section 1111. It is within the power of the legislature to require such corroboration even though the subject of an abortion could be shown to be the victim of force or misplaced confidence, in which case such a witness would not be “liable to prosecution” and hence not an accomplice as defined by section 1111. It should be noted also that the use of the word “identical” in section 1111 involves no implications that suggest or require any different meaning than that for which it is usually employed. “Identical” means “same”, with perhaps a little emphasis.

It should be emphasized that section 1111 as well as sections 1103a, 1108 and 1110, referred to by respondent, have to do with the sufficiency of evidence to justify and support a conviction whereas subdivision 4 of section 2061 of the Code of Civil Procedure, which provides that the jury on all proper occasions is to be instructed that the testimony of an accomplice ought to be viewed with distrust, and which provision respondent seeks to avoid, is concerned with the credibility of witnesses and the value of evidence. There is no conflict among these last–mentioned provisions of the code, nor indeed is there any conflict among any of the provisions of the code herein considered. The word “accomplice” is not defined for general purposes in any of the codes; “accomplice” therefore as used in subdivision 4 of section 2061 of the Code of Civil Procedure must be “construed according to the context and the approved usage of the language” (sec. 16, Code Civ.Proc.). Such construction is comprehensive and there is no reason for restricting the application of such provision because of requirements affecting the sufficiency of evidence to justify and support a conviction.

With regard to the use of the word “accomplice” in both the first and second sentences of section 1111, and notwithstanding the single purpose for which it is therein employed, there is nothing to suggest that the legislature had in mind any different meaning than that which, in its general acceptation, it inevitably implies. The stigma is not removed; no regeneration has taken place; nor has an accomplice been endowed with any of the attributes of respectability. To the contrary, the likely untrustworthiness of such individuals as witnesses remains the same so far as the law applicable thereto is concerned. They are now, as they always have been regarded, particeps criminis.

The determination of who are “liable to prosecution for the identical offense” ipso facto determines who must be corroborated by other evidence. For the purpose of such a decision reference need only be made to the provisions of the Penal Code hereinabove referred to, namely, sections 6, 15, 30, 31, 654, 971, and in particular, sections 31 and 971. Therein the law is plainly set forth; and therein is to be found the obvious meaning and interpretation of section 1111. “Principals” are “parties to crimes” and sections 31 and 971 are practically if not literally all inclusive. There can be no escape therefore from the conclusion that sections 31 and 971 determine the meaning to be given to “accomplice” as used in section 1111, for sections 31 and 971, considered with relation to the other provisions herein referred to, determine who are liable to prosecution, not only for “identical” offenses, but as well for any offenses. And although as hereinbefore noted, “accomplice” is not defined except as provided in section 1111, nevertheless it is described by sections 31 and 971 in such unmistakable language that, in the final analysis, “accomplice” and “principal” are synonymous.

Notwithstanding the clear language of sections 31 and 971 of the Penal Code and the comprehensive purpose obviously intended by these provisions and their inevitable effect in the determination of what witnesses are accomplices, a tendency to legislate exceptions into the statutes by judicial decision appears to have developed a problem that is by no means trivial. This anomaly, however, is of recent origin, as the opinions hereinafter referred to will reveal. It appears to be the product of an unwarranted interpretation of an amendment to section 1111 of the Penal Code adopted in 1915. Before that time no concessions were made on behalf of accomplices, except perhaps in the case of In re Cooper, 162 Cal. 81, 121 P. 318. There the court was “satisfied that the overwhelming weight of modern authority is to the effect that, in the absence of statutory provision to the contrary, participation in an act of sexual intercourse on the part of an unmarried woman does not constitute ‘adultery’ on her part, but amounts simply to fornication.” Id., 162 Cal. at page 84, 121 P. at page 319. It was contended, in that connection, by counsel for the state that defendant nevertheless aided and abetted her married codefendant and therefore was a principal; but, the court argued: “Of course, an unmarried person might be guilty as a principal of this offense, under section 31 of the Penal Code, by aiding and assisting in its commission in some other way than by living in a state of illicit intercourse with a married person; but we are considering here simply such aid and assistance as are involved in the mere fact of participation in the illicit intercourse.” Id., 162 Cal. at page 85, 121 P. at page 320. Having summarily decided that, “the idea of guilt on the part of an unmarried participant of such an offense as this is thus excluded by the terms of the statute defining the offense”, the court further declared that, “we think it must be held to follow that such participant cannot be held punishable as being an aider and abettor in the offense, even though he or she be held to be an accomplice under the provisions of section 31 of the Penal Code,” (Id., 162 Cal. at page 86, 121 P. at page 320); and concluded with the observation that, “There is nothing in People v. Coffey, [161 Cal. 433], 119 P. 901 [[[[903, 39 L.R.A.,N.S., 704], in conflict with this view”.

In People v. Coffey, supra, the subject of accomplices is considered at length, including the historic background. There the court declares as follows: “* * *, we may derive a satisfactory definition of an accomplice from the language of section 31 of the Penal Code above quoted. Accomplices, then, are ‘all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.’ Certainly, since the law has said that all such persons are so tainted with guilt that they may be indicted as principals, it cannot be denied that they are also accomplices. This definition, moreover, runs counter to no authority, since by all, every person of legal responsibility, who knowingly and voluntarily co–operates with or aids or assists or advises or encourages another in the commission of a crime is an accomplice, without regard to the degree of his guilt.” And People v. Coffey was decided just about two months before the decision in Re Cooper, supra. With regard to the credibility of an accomplice, People v. Coffey is cited with approval in People v. Dail, August, 1943, 22 Cal.2d –––, 140 P.2d 828. People v. Kraker, 1887, 72 Cal. 459, 14 P. 196, 197, 1 Am.St.Rep. 65, held in effect that a defendant charged with receiving stolen property and the thief who had sold such property to the defendant, were accomplices, observing in that connection that “an accomplice includes all persons who have been concerned in the commission of an offense.”

The amendment of section 1111 in 1915 has produced in a number of decisions certain language with reference to accomplices that, unless abrogated, can lead to mischievous if not serious results in the administration of justice. With due respect for the opinions therein expressed, nevertheless they are manifestly the product of a failure to give requisite consideration to the effect of sections 31 and 971, in particular, of the Penal Code. For example, In re Morton, 1918, 179 Cal. 510, 177 P. 453, 454, declared that, “The case of People v. Kraker, 72 Cal. 459, 14 P. 196, 1 Am.St.Rep. 65, upon which appellant relies in support of his proposition, is not in point, for the reason that, among others, it was decided before the amendment of 1915 of section 1111, which added the clause above quoted.” Reference to section 1111 in Re Morton is pure dictum. People v. Davis, 210 Cal. 540, 293 P. 32, 39, is another example. There the principal question was whether the testimony of an admitted accomplice was corroborated. But, by way of dictum, the court declared, “that since 1915, under the amendment of that year to section 1111 of the Penal Code providing that an accomplice is one who is liable to the prosecution for the identical offense charged against the defendant on trial, the giver and receiver of a bribe are no longer accomplices one to the other (although that was formerly the law of this state, People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L.R.A.,N.S., 704), inasmuch as the asking or receiving a bribe is made a separate offense from offering or giving a bribe, under section 68 of the Penal Code.” There is no reference here to sections 31 and 971 of the Penal Code nor to the other provisions hereinbefore referred to. The sole reason given is that “asking or receiving a bribe is made a separate offense from offering or giving a bribe”. But even on this basis such a conclusion is unwarranted for the reasons hereinbefore mentioned. The test as to who are accomplices does not depend upon whether certain conduct constitutes an offense under one or more or different provisions of the Penal Code. Hence the proposition, that the “asking or receiving” and the “offering or giving” of a bribe are separate offenses, is a false premise. Again, in People v. Layman, 117 Cal.App. 476, 4 P.2d 244, 246, the court held that the 1915 amendment to section 1111 were words of “limitation”, which in effect repudiated the law so well illustrated and exemplified in People v. Coffey, supra. Referring to the reasoning in People v. Coffey, the court in the Layman case declared that, “The break in this chain of reasoning is made by interpreting the words ‘one who is liable to prosecution for the identical offense charged,’ as limited to one who is so liable because he is a principal in fact, and as not applying to one who is a principal only by the effect of section 31. So, it has been held, both parties to the crime of incest are accomplices, if adult and competent, because each is in fact a principal.” By this process of reasoning, a “principal in fact” is created as a fiction and then distinguished from “a principal only by the effect of section 31.” There is no answer to such reasoning but to point out its fallacy. The only “principal” that may properly be considered is the “principal” defined by law.

In order to uphold the reasoning and conclusion of the court with regard to the meaning of section 1111 as declared in People v. Davis, In re Morton and People v. Layman, all supra, sections 31 and 971 must be held to have been repealed by implication when, as a matter of fact and as a matter of law, the 1915 amendment to section 1111, to the extent required by the limited purpose of that section, merely codified the law respecting accomplices as defined in People v. Coffey, supra.

That the question here considered is of extreme importance may be gathered from a consideration of the evidence in People v. Wilson, 54 Cal.App.2d 434, 129 P.2d 149, and People v. Gibson, 33 Cal.App. 459, 166 P. 585. In these last two mentioned cases the defendant was accused of murder which resulted from an abortion. Evidence of the dying declaration of deceased was received and the question arose as to whether deceased was an accomplice and evidence of her dying declaration required corroboration. Under section 1108 in an abortion prosecution the testimony of such a witness, under oath and subject to cross–examination, must be corroborated to support a conviction. In a murder trial, the dying declaration, although made in view of impending death but without either the sanctity or solemnity of an oath, is received in evidence as an exception to the hearsay rule. Subject to such hazards and unsupported by sufficient corroboration would such evidence support a conviction of murder? The Supreme Court withheld determination of this question in denying a hearing in People v. Gibson, supra, 33 Cal.App. at page 463, 166 P. at page 586, with the following comment: “Our order denying a hearing in this court is not to be taken as an intimation of our approval of that portion of the opinion which intimates that the deceased could not be regarded as an accomplice whose testimony required corroboration under the provisions of section 1111 [of the] Penal Code. Nor is our denial to be taken as intimating an opinion one way or the other on the question of the application of section 1108 [of the] Penal Code.”

From the foregoing, and from an examination of the record herein, the conclusion is inevitable that Mrs. Thelma Huntley, as contended by appellants, was the accomplice of defendants. In that connection it is argued by appellants, as heretofore noted in substance, that “when there is no conflicting evidence as to a witness being an accomplice, and that fact stands undisputed in the testimony, the court should as a matter of law instruct the jury that such witness is an accomplice”, (citing cases). It is also argued that Mrs. Alice Thurman and Mrs. Martha A. Huntley are in the same category; hence the same instruction should have been given as to them.

As heretofore noted, the jury was fully instructed with regard to accomplices. And as to the witness Mrs. Thelma Huntley, upon whom the abortion was performed, the jury was instructed pursuant to section 1108 of the Penal Code. Assuming therefore, but only for the sake of argument, that an instruction specifically identifying such witness as an accomplice was imperative, nevertheless, in the circumstances, no prejudice is shown to have resulted. For all practical purposes the effect of the instructions given by the court was the same.

As to the other two witnesses, the record reveals that they might well have been considered by the jury as innocent of any wrongdoing and regarded as neither aiders nor abettors of the alleged offense. This being true, the evidence is sufficient to support the verdict and judgment.

But, it is appellants' contention that in the absence of a specific instruction that Thelma Huntley was an accomplice the jury might have reasoned that she was a “victim” and not an accomplice; that, while under such misapprehension, even in the light of the instruction that her testimony had to be corroborated, the jury could have believed the testimony of the other two women, whom appellants also contend were accomplices, was sufficient to support a verdict, thus, it is argued, depriving appellants of the benefit of the instruction that one accomplice cannot corroborate another. Such argument is plausible but ineffective. It necessarily is based on the proposition that the jury was incapable of understanding and applying the instructions given, whereas the contrary is the rule.

There are no prejudicial errors shown by the record and for the reasons given the judgment and order appealed from are affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.