PEOPLE v. HERBERT

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

PEOPLE v. HERBERT.*

Cr. 2716.

Decided: November 07, 1935

Paul G. McIver, of Montebello, for appellant. U. S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.

On November 17, 1934, defendant was driving an automobile at approximately 50 miles per hour in the rain, in the city of Montebello. As he thus approached an intersection of two streets, he attempted to pass an automobile that was in front of him, but realizing that he could not do so safely, applied his brakes, as a result of which his car skidded a distance of approximately 135 to 150 feet and careened into another automobile that was being driven by one Briscoe as a consequence of which collision Briscoe suffered injuries from which he died on the 19th day of November, 1934. On November 26, 1934, or about a week after Briscoe's death, defendant was charged with a violation of section 121 of the California Vehicle Act (Deering's Gen. Laws 1931, Act 5128), to wit, reckless driving. Said section reads as follows: “Any person who drives any vehicle upon a highway in so negligent a manner as to indicate either a wilful or a wanton disregard of the safety of persons or property shall be guilty of reckless driving and upon conviction shall be punished by imprisonment in the county jail for a period of not less than five days nor more than ninety days or by fine of not less than twenty-five dollars nor more than two hundred fifty dollars, or by both such fine and imprisonment.”

To such charge defendant pleaded guilty; sentence was pronounced, which sentence was in part suspended; the net result being that defendant paid a fine of $10. On January 16, 1935, by information filed against him, defendant was charged with the commission of the crime of manslaughter, a felony, committed as follows: “That the said Homer M. Herbert on or about the 17th day of November, 1934, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously and without malice, kill one Joseph Briscoe, a human being.” It was stipulated by respective counsel that the said charge of manslaughter was based upon the identical facts which have been briefly summarized and upon which defendant had been already sentenced on his plea of guilty to the charge of reckless driving. To this information defendant entered pleas of not guilty and once in jeopardy. Trial was had without a jury, and the trial court found against defendant on his plea of once in jeopardy; found him guilty of manslaughter; pronounced sentence; suspended the same and placed defendant on probation. From the judgment entered pursuant thereto, and from an order denying his motion for a new trial, defendant has appealed to this court.

Although a question has been raised as to the formal legality and sufficiency of the plea of once in jeopardy, it is satisfactorily disposed of in the dissenting opinion filed herein. The decisive question is, Was the defendant placed in jeopardy twice for the same offense; or, to phrase it more specifically, does the charge of manslaughter on the facts as outlined necessarily include the crime of reckless driving?

Before the appointment of Mr. Presiding Justice N. P. Conrey (then of this court) to the office of associate justice of the Supreme Court of this state, became effective, he prepared a certain memorandum that in a limited way represented his views with reference to the question of whether, considering the facts hereinbefore outlined, by defendant's prior conviction on the charge of “reckless driving,” he had been placed in former jeopardy as far as the charge of manslaughter in the instant case was concerned. Although such memorandum does not purport to be, nor is, a complete or full expression of opinion with reference to the determinative issue of the instant appeal, nevertheless, taken in connection with the language expressed in the dissenting opinion filed herein, such memorandum is so indicative of that which is conceived to be the law of this state on the question thus presented, that, with a few inconsequential clerical or typographical changes in its original verbiage, it is herein adopted and made the opinion of this court. Such memorandum is as follows:

“The offense of reckless driving, in violation of section 121 of the California Vehicle Act, to which Herbert pleaded guilty in the police court, was not necessarily included in the manslaughter, viz., the killing of Briscoe ‘unlawfully, feloniously and without malice,’ by the defendant. It must be admitted that on November 26, when the complaint on the misdemeanor charge was filed, both offenses were complete, as the reckless driving and the primary injury to Briscoe both occurred on November 17, and the death of Briscoe followed on the 19th.

“As far as prior jeopardy is concerned, as that situation is described in section 1023 of the Penal Code, and applying that description or definition to the facts here, the manslaughter was not an offense necessarily or at all included in the misdemeanor charge, of which the defendant ‘might have been convicted under that indictment or information,’ that is, under the misdemeanor charge. It is true that on November 26 the facts were such that in a proper forum, the defendant then might have been prosecuted for manslaughter in the killing of Briscoe. In such prosecution he would have been placed in jeopardy, not for the separate offense of reckless driving, but for causing the death of Briscoe, by means of reckless driving plus the hitting of Briscoe. Under the manslaughter charge, he could not have been acquitted of manslaughter and convicted of reckless driving. Under the misdemeanor charge in the police court, he could not have been convicted of manslaughter.

“In the case at bar, defendant's reckless driving of his car, that is, ‘in so negligent a manner as to indicate a wilful or a wanton disregard of the safety of persons or property,’ happened to be an act committed in violation of law; but for the purposes of trial of the instant case this conduct of the defendant, when proved, was merely part of the evidence of his unlawful killing of a human being, which in this instance was done ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ Pen. Code, § 192.

“I am aware of the rule that where there are several degrees of a single kind of crime, the defense of ‘once in jeopardy’ is, under some circumstances, available, even where the prior action relates only to the lesser degree. Thus, an acquittal of manslaughter would protect against a subsequent prosecution for murder of the same victim at the same time as in the first case. I do not think that such rule applies to the case at bar.

“It is a constitutional right, that ‘no person shall be twice put in jeopardy for the same offense.’ I do not think that this defendant has been ‘twice put in jeopardy for the same offense.’

“The latest case on this question is People v. Coltrin (Cal. App.) 48 P. (2d) 973,–see discussion on pages 977 and 978.”

The facts in the case of People v. Wilson, 193 Cal. 512, 226 P. 5, are similar to those of the instant case. In principle, the decision in the cited case would seem to be determinative as against the point for which appellant herein so stoutly contends.

The judgment and the order by which defendant's motion for a new trial was denied are, and each of them is, affirmed.

I concur: YORK, J.

I dissent. It is axiomatic in our jurisprudence that a conviction or acquittal of a crime, which necessarily includes a lesser or a number of lesser offenses, constitutes jeopardy as to the offense or offenses necessarily included. Our Constitution provides: “No person shall be twice put in jeopardy for the same offense.” Article 1, § 13; Pen. Code. § 687.

Our statutes specifically provide as follows:

Penal Code, § 687: “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.”

Penal Code, § 1023: “When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.”

Penal Code, § 1159: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

Penal Code, § 654: “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; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. In the cases specified in sections six hundred and forty-eight, six hundred and sixty-seven, and six hundred and sixty-eight, the punishments therein prescribed must be substituted for those prescribed for a first offense, if the previous conviction is charged in the indictment and found by the jury.”

It is also basic that when a person is prosecuted for a lesser offense which is necessarily included in a greater one, such person cannot be prosecuted for the greater offense because the prosecution for the included lesser offense constitutes jeopardy as to the greater offense fully as much as in the converse situation. People v. Hunckeler, 48 Cal. 331; People v. Defoor, 100 Cal. 150, 34 P. 642; People v. McDaniels, 137 Cal. 192, 69 P. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81. In People v. McDaniels, 137 Cal. 192, at page 194, 69 P. 1006, 1007, 59 L. R. A. 578, 92 Am. St. Rep. 81, the court says: “It is well settled that a conviction of a lower offense embraced in a higher one, for the commission of which a defendant was tried, is an acquittal of the higher offense, and an independent trial and conviction of the lower offense, when pleaded, must, upon the same principle, be a bar to the prosecution for the higher offense which included it. People v. Defoor, 100 Cal. 150, 34 P. 642.”

To these well-established principles there are a number of exceptions: First, when the greater offense is not complete at the time jeopardy has attached on the lesser. People v. Defoor, 100 Cal. 150, 154, 155, 34 P. 642; People v. Wilson, 193 Cal. 512, 226 P. 5; Commonwealth v. Roby, 12 Pick. (29 Mass.) 496. In the Wilson Case the defendant, operating an automobile, struck one Johnson, and as a result of the injuries suffered thereby, Johnson died. Prior to the death of Johnson, defendant was charged with a violation of section 20, Motor Vehicle Act (Stats. 1915, p. 406, as amended by Stats. 1917, p. 400). Defendant pleaded not guilty to such violation, was brought to trial on said charge, but during the course of said trial Johnson died, and the misdemeanor complaint was dismissed and thereupon defendant Wilson was charged with the crime of manslaughter, to which he entered a plea of once in jeopardy, which, upon motion of the district attorney was stricken out by the trial court, which court directed the jury to bring in a verdict for the people. The Supreme Court said, speaking with reference to this point, 193 Cal. 512, at page 515, 226 P. 5, 6: “In order that a plea of once in jeopardy may be available to a defendant, the second prosecution must be for the same offense, both in law and fact, as that for which the first prosecution was instituted. * * * In such an event the second prosecution is not for the same offense as the first. * * * In none of the cases cited by the appellant in support of his contention as to his plea of ‘once in jeopardy’ does the element of death, which is the essential basis of the charge of manslaughter, appear to be present; nor upon principle do we think a case can be conceived wherein a charge of murder or manslaughter could be defeated by a plea of once in jeopardy, based upon a mere misdemeanor charge, trial, or conviction of the assault or offense which had later resulted in the death of the injured victim. It was therefore not error in the trial court to strike out the defendant's offered evidence in that regard, or to direct the jury to find against the defendant upon his aforesaid plea.” (Italics ours.)

Whether the situation alluded to in the Wilson Case constitutes an “established exception” to the rule of once in jeopardy, as stated in People v. Defoor, 100 Cal. 150, 155, 34 P. 642, or, as the language of the supreme court in the Wilson Case suggests, a different and separate crime, there can be no doubt that the plea of once in jeopardy would not be available under the facts of this case, if the death had occurred after the filing of the lesser charge, provided such lesser charge were then dismissed, or after final judgment of conviction on the lesser charge.

A second exception is founded upon the procurement of a first conviction or acquittal by fraud, connivance, or collusion. People v. McDaniels, 137 Cal. 192, 199, 69 P. 1006, 1009, 59 L. R. A. 578, 92 Am. St. Rep. 81. In the McDaniels Case, the court says with reference to this point: “Of course, if the former conviction was procured by the fraud, connivance, or collusion of the defendant, this fact vitiates it, and it is no bar to a subsequent prosecution. State v. Little, 1 N. H. 257; State v. Lowry, 1 Swan. [Tenn.] 34; State v. Reed, 26 Conn. 202; 1 Bish. Cr. Law, §§ 1008, 1010. But here there is no pretense that the prosecution before the justice was fraudulent. The constitutional provision here involved was made for the protection of the citizen, and should be liberally construed in his favor. In State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490, it was said: ‘Where the state has thought proper to prosecute the offense in its mildest form, it is better that the residue of the offense go unpunished, than, by sustaining a second indictment, to sanction a practice which might be rendered an instrument of oppression to the citizen.”’

What is said by the court in the McDaniels Case with reference to the absence of fraud is equally applicable to the facts of this case, since there is no evidence that there was any fraud, collusion, or connivance other than that which is suggested by the culpable laxness of the administrative authority which initiated the original charge in the Montebello police court. Fraud cannot be presumed; no point was made of it at the trial, and, standing alone, the bare fact, while undoubtedly “raw,” does not warrant a finding of fraud.

A third exception is found in the rule adopted in those states which have established by statute or judicial construction that jeopardy attaches only to crimes of the same degree. This principle is that a misdemeanor is never “necessarily included” in a felony, but that only another felony can be “necessarily included” in a felony charge. The early case of Commonwealth v. Roby, 12 Pick. (29 Mass.) 496, makes clear this principle.

In the Roby Case defendant was indicted for a felonious assault on Maria Leonard on May 2, 1831, with intent to kill and murder. He was tried and convicted, but between the time of conviction and the passing of sentence, Maria Leonard died. The court, instead of pronouncing sentence, suspended judgment until the next term in order to permit the filing of an indictment for murder. The murder indictment was filed. Defendant pleaded jeopardy, and the court found against said plea. It will be noted that in the Roby Case the death occurred after the prosecution for the lesser offense had been initiated. The case, therefore, on its facts falls within a well-settled exception (People v. Defoor, supra), or becomes a separate offense because of the after occurring fact. People v. Wilson, 193 Cal. 512, 226 P. 5. It was not, however, decided on this ground. The statutes of Massachusetts as judicially construed prevented a misdemeanor from being included in a charge of a felony, on the theory that a misdemeanor and a felony could not be the same offense in law, because they were of a different classification or degree, even though both arose from the same transaction and were both the same in fact. Thus in the Roby Case the court first refers to the fact that jeopardy applies only to offenses of the same classification or degree, and says, 12 Pick. (Mass.) 496, at page 502: “It may now be taken to be an expression descriptive of the class of punishments denounced by law against those offences coming under the denomination of felony. People v. Goodwin, 18 Johns. [N. Y. 187] 201 [9 Am. Dec. 203].” The court then construes two apparently conflicting statutes of the state, and says, 12 Pick. (Mass.) 496, at page 507: “The earlier statute, upon the charge of any crime, authorized the jury to find the prisoner guilty of a part, whether such part amounted to a felony or not. This statute is in terms repealed, and another similar one enacted, with this limitation, that when the crime charged is a felony, the jury may convict and the court sentence for a part, provided such part amounts to a felony. By force of this obvious and studious alteration of the law in this respect, the power of convicting of a misdemeanor, on an indictment for a felony, seems to be effectually taken away.” (Italics ours.) The court in that case goes on to say, 12 Pick. (Mass.) 496, at page 505: “In applying this rule to the present case, we are all of opinion, that the facts constituting the felony and murder charged in the indictment now pending, would not have been competent evidence to warrant a conviction of the offence charged in the indictment in the Municipal Court. That offence was a misdemeanor, to wit, an assault, charged to have been committed with a felonious intent to murder. The offences are distinct in their nature, of a distinct legal character, and in no case could a party on trial for the one be convicted of the other.”

It is apparent, therefore, that in some states statutes specifically provide that in the prosecution of a felony there can be no conviction of a misdemeanor even though in the prosecution for a felony the evidence would show guilt of a misdemeanor, and that a prosecution for a misdemeanor will not bar a prosecution for a felony arising from the identical act or transaction. 16 C. J. 272, note 19. Such, however, is not the law of this state. In People v. McDaniels, supra, 137 Cal. 192, page 197, 69 P. 1006, 1008, 59 L. R. A. 578, 92 Am. St. Rep. 81, the court says: “In England, prior to Lord Denman's Act (* * * enacted in 1837), one indicted for a felony could not be convicted * * * for a misdemeanor. * * * But Lord Denman's act provided * * * where the crime charged shall include an assault against the person, there might be an acquittal of the felony and a conviction of the assault. The vital principle of that act is embodied in section 1159 of our Penal Code. There are many cases, however, in this country that have followed, in their results, at least, the old common law, and permit different crimes included in the same act or transaction to be separately prosecuted and punished.” See, also, 137 Cal. 192, page 199, 69 P. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81.

We have referred at length to the Roby Case because it is cited as authority by many other cases which assert the principles of the Roby Case, but which principles were not applicable to the facts of such other cases, because in such other cases there was no event occurring after a prosecution for a lesser offense making complete a greater offense, as there was in the Roby Case, and there were no specific statutory provisions or indigenous judicial interpretations holding that a felony could not under any circumstances include a misdemeanor as a lesser crime.

Because of the failure of so many decisions to make clear the distinctions between the application of the general test rules concerning jeopardy and the exceptions to such rules, the fact that all or some of the exceptions are recognized in some jurisdictions and none in others, the failure on the part of the courts to agree on what constitutes one transaction, and the actual conflict between many jurisdictions, where the rule and exceptions are apparently the same, to agree in their application to similar facts, has led to much and continuous confusion on the subject of double jeopardy. Our Supreme Court says in People v. Defoor, 100 Cal. 150, 154, 34 P. 642, 643: “The circumstances under which courts have been called upon to determine what facts constitute the same offense have been so different and numerous that the authorities upon this subject are seriously conflicting, so far as the general question is concerned.” This confusion, however, is due, not alone to the “circumstances under which courts have been called upon to determine” facts, but also to the failure of the courts to distinguish cases which were decided in the light of statutory enactments, stare decisis of the particular state, and other exceptions to generally accepted rules. On this same subject our Supreme Court, in People v. McDaniels, supra, 137 Cal. 192, at page 198, 69 P. 1006, 1009, 59 L. R. A. 578, 92 Am. St. Rep. 81, says: “‘This rule of interpretation is in many of the cases not thought of by the courts, and other obvious principles are overlooked, so that our books contain numerous decisions wherein this constitutional right has been denied to the prisoner.”’ (Italics ours.)

In this state there may undoubtedly be a conviction of a lesser offense, even though it be a misdemeanor “necessarily included” in the greater offense charged “or of an attempt to commit the same” under the clear language of the Code sections and the authorities. Thus in this state there can be no question that the conviction of a crime of assault would bar a prosecution on a charge of assault with intent to commit murder. People v. Defoor, supra; People v. McDaniels, supra; People v. Hunckeler, supra.

As already suggested, a source of further confusion arises from a failure of many decisions to distinguish between a plurality of separate crimes of the same degree or a plurality of separate crimes of different degree arising from a single transaction, or a series of consecutive acts; and one crime of large degree arising from one act or transaction which necessarily includes lesser crimes. Compare People v. Majors, 65 Cal. 138, 146, 3 P. 597, 52 Am. Rep. 295; People v. Stephens, 79 Cal. 428, 430, 21 P. 856, 4 L. R. A. 845; People v. Brannon, 70 Cal. App. 225, 233 P. 88; People v. Scofield, 203 Cal. 703, 710, 265 P. 914.

This source of confusion has been caused by a misconception of what is a single transaction, a failure to define the crime or crimes involved, and a consequent misapplication of principles generally accepted as sound.

It is settled in this state and many others, although some have announced a contrary doctrine (Clem v. State, 42 Ind. 420, 13 Am. Rep. 369), that a person may commit one or more crimes by the same act. People v. Majors, 65 Cal. 138, 146, 3 P. 597, 52 Am. Rep. 295; People v. Brannon, 70 Cal. App. 225, 233 P. 88.

Thus it is established that if, with malice aforethought, X puts poison in a cup with intent to kill A, and A, B, and C drink therefrom and die, X may be charged with three separate murders. Or, if X, with intent to kill A, shoots at A and merely wounds him, but the bullet also enters the body of B and kills B, X is guilty of two separate crimes, to wit, assault with intent to murder A, and the murder of B. People v. Majors, supra; People v. Brannon, supra. So, it has been held that if one enters a mail car and opens seven different sacks of mail, he is guilty of seven different offenses. Ebeling v. Morgan, 237 U. S. 625, 35 S. Ct. 710, 59 L. Ed. 1151. Yet, it has also been held under similar circumstances, that a prosecution for one of the crimes bars a prosecution for any of the others, because they all arise out of the same transaction. 16 C. J. 272, note 21; Clem v. State, supra. The fallacy in the application of this rule is the failure of the courts to take into consideration the definition of the crime with which the defendant is charged. When the definitive terms of the crime charged are broken down, it clearly appears in these cases, first, that frequently where “the same transaction test” is applied, it is in fact and law not the same transaction; and, secondly, where it actually is the same transaction in fact, there are two classes of offenses committed: First, separate crimes, which can never be included in each other; and, second, one crime or separate crimes in which one or more minor offenses are necessarily included. So, in the Mailbag Case (Ebeling v. Morgan, supra) the statute specifically made the unlawful opening or violation of a mailbag a separate crime. Opening seven different mailbags in rapid succession was no more one transaction than if one deliberately got himself drunk and stood on a street corner and successfully shot seven different people. In each situation, seven different crimes have been committed, and the transaction is not the same. In a case of multiple killing with one shot, or with a single dose of poison, the transaction is the same, but the same transaction has given rise to separate crimes, which can never be merged or included, because of the nature of the definition of the crime. Thus murder is defined as “the unlawful killing of a human being, with malice afore-thought.” Penal Code, § 187. (Italics ours.) The definition is obviously singular. A human being does not mean more than one. It means one. Obviously, therefore, if a person kills more than one human being by the same act, he commits a number of murders, each a separate and distinct felony.

Various tests have been enunciated by the cases to assist a court to determine when one crime is necessarily included in another. The cases of People v. Wilson, and People v. Majors, supra, enunciate such tests. Other California cases hereinafter referred to enunciate other tests which are also generally accepted. The case of Commonwealth v. Roby, 12 Pick. (29 Mass.) 496, sets forth a number of different tests, all indorsed by ancient and respectable authority. None of them, however, has any universal application, and they frequently have been applied differently to the same facts. People v. McDaniels, supra, 137 Cal. 192, page 198, 69 P. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81. Excluding the three exceptions which have been already stated, of which only the first two apply in this state, and without attempting to analyze specifically all the jeopardy principles enunciated by the various cases, but testing them in the light of a great number of adjudicated California cases, as applied to a variety of different facts, it appears that the practical rule which has been adopted by the courts of this state may be stated as follows: When the facts in a given situation as they actually exist at the time of a prosecution for a lesser offense can, and actually do, make out a complete corpus delicti for a greater one, even though all of those facts are not necessary to establish the corpus delicti of the lesser crime first charged, but such portion of the facts as are used to establish the corpus delicti of the lesser crime are in their entirety integrally necessary as a matter of law to establish a corpus delicti for the greater crime, then a prior prosecution of the lesser crime bars a subsequent prosecution for the greater crime. Conversely, if the greater crime is first charged, and, in order to prove it, it is integrally necessary and essential to completely prove the corpus delicti of a lesser crime, such lesser crime is necessarily included in the greater. In short, when a corpus delicti is once drained from the facts of a given situation and the same corpus delicti is in its entirety an indispensable part of a greater crime, the crime spelled out by the first corpus delicti is a “necessarily included” offense. To illustrate: Arson is a distinct offense. If in the commission of arson an innocent person in the building is burned to death, murder has been committed, which is, under ordinary circumstances, an entirely separate crime. On the facts recited, however, a prosecution for arson would bar a prosecution for murder. State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490; Reg. v. Lau Kin Chew, 8 Haw. 370, cited in note in 4 A. L. R. 702. So robbery and murder are separate crimes; yet if in the commission of a robbery the theif accidentally shoots the owner and kills him, a prosecution for robbery would bar one for murder. This is so because the malicious intent which, as a matter of law, is indispensable to proof of the murder must be gathered from the other crime and can be proved in no other manner. If, however, while committing arson the arsonist observes that he is being watched by A and shoots and kills A in order to perpetrate his crime of arson without detection, or if the robber, to prevent identification by one who has observed him, shoots and kills such observer, then an arson or robbery prosecution would not bar a murder charge because the essential elements of each separate offense can be proved without drawing upon the lesser offense to supply as a matter of law some necessary and essential omission which must be supplied before a murder case can be completed. So assault is a necessarily included element of many felonies and an attempt to commit a crime is always a necessarily included element of a completed crime. Pen. Code, § 1023. An assault, however, frequently accompanies the commission of crimes of which it is not a necessary element. 16 C. J. 274; People v. Defoor, 100 Cal. 150, 34 P. 642. Thus, if in the heat of anger upon sudden provocation, A set upon B and killed him, the assault by A is integrally a part of the corpus delicti on a charge of manslaughter. If A be charged with assault after B's death, the first prosecution is undoubtedly a bar to the second. On the other hand, if A commit a robbery upon B and after the robbery or attempted robbery actually assault him with a deadly weapon, they are separate crimes, because the actual assault is not part of the corpus delicti of robbery and the robbery is no part of the corpus delicti of the actual assault. People v. Bentley, 77 Cal. 7, 18 P. 799, 11 Am. St. Rep. 225; People v. Pickens, 61 Cal. App. 405, 214 P. 1027. The same is true as between burglary and larceny (People v. Devlin, 143 Cal. 128, 76 P. 900; People v. Snyder, 74 Cal. App. 138, 239 P. 705), and an analysis will show that the same is true in almost all California cases in which our courts have denied the plea of jeopardy and held that there were separate crimes involved. In some of the cases there are additional distinguishing features. People v. Scofield (Cal. App.) 258 P. 656; People v. Scofield, 203 Cal. 703, 265 P. 914; People v. Thal, 61 Cal. App. 48, 214 P. 296; People v. Ryan, 74 Cal. App. 125, 239 P. 419; People v. Marzec, 108 Cal. App. 264, 291 P. 600; People v. Shaffer, 81 Cal. App. 752, 254 P. 666; People v. Case, 77 Cal. App. 477, 246 P. 1083; People v. Kerrick, 144 Cal. 46, 77 P. 711; People v. Parker, 74 Cal. App. 540, 241 P. 401; People v. Anastasion, 79 Cal. App. 268, 249 P. 209; People v. Brain, 75 Cal. App. 109, 241 P. 913; People v. Sheik, 75 Cal. App. 421, 243 P. 39; People v. McKee, 80 Cal. App. 200, 251 P. 675; People v. Degnen, 70 Cal. App. 567, 234 P. 129; People v. Johnson, 82 Cal. App. 411, 256 P. 273; People v. Rabe, 202 Cal. 409, 261 P. 303; People v. Stovall, 94 Cal. App. 635, 271 P. 576; People v. Koehn, 207 Cal. 605, 279 P. 646; People v. Powell, 50 Cal. App. 436, 195 P. 456; People v. Oliver, 102 Cal. App. 29, 282 P. 813; People v. McGrath, 94 Cal. App. 520, 271 P. 549; People v. Helbing, 61 Cal. 620; People v. Stephens, 79 Cal. 428, 21 P. 856, 4 L. R. A. 845; In re O'Connor, 80 Cal. App. 647, 252 P. 730; People v. McFarlan, 126 Cal. App. 777, 14 P.(2d) 1066.

A close scrutiny of the foregoing California cases demonstrates the soundness of what for want of a better name may be called the corpus delicti test. It is on similar facts directly applied in the case of People v. Scofield (Cal. App.) 258 P. 656. In the Scofield Case the defendant was charged in three counts, one for manslaughter, one for driving while intoxicated, and one for violation of section 141 of the California Vehicle Act (St. 1923, p. 562). After the jury had been impaneled and sworn, the district attorney dismissed the count of driving while intoxicated. In commenting upon the instructions of the trial court, the appellant court said, 258 P. 656, at page 658: “It will be observed that the trial judge instructed the jury, in the disjunctive, that appellant must be found guilty of manslaughter if–the other requisites of the law being satisfied–the jury determine that he drove his car while intoxicated, or at an unlawful rate of speed. * * * As far, then, as the question here involved is concerned, the point may be considered as if the jury had been instructed, alone, that if it found that appellant drove the automobile while under the influence of liquor he must be convicted of manslaughter. But appellant had just been acquitted of a charge of driving while intoxicated upon the same occasion. The instruction practically told the jury that he might be tried again on the charge, and it would seem for that reason to have been erroneous. * * * Here the charge of driving while under the influence of liquor, if we consider it alone under the instruction which was given to the jury, was a necessary element in the charge of manslaughter. The latter charge was nothing without the former.” The court discusses at some length the distinction between this case and the case of People v. Wilson, 193 Cal. 512, 226 P. 5, and People v. Brannon, 70 Cal. App. 225, 233 P. 88. A hearing in the Supreme Court was granted in this case, and while that court in its opinion (203 Cal. 703, 265 P. 914) does not specifically refer to the point to which attention has been directed, but concerns itself primarily with the third count of the information (the only one upon which a conviction was had), the court does say, 203 Cal. 703, at page 705, 265 P. 914, 915: “Numerous specifications of error are assigned with reference to the conduct of the case applicable to the first and second counts. [These were the counts charging manslaughter and driving while intoxicated.] They have been examined, but nothing is discovered which would prejudicially affect the rights of the defendant as to the count upon which he was convicted. They are not likely to recur in the event of a new trial, and no further notice need be taken of them.” (Italics ours.)

In the case of People v. Bentley, 77 Cal. 7, 18 P. 799, 800, 11 Am. St. Rep. 225, the defendant was tried and convicted of an attempt to commit robbery. On the trial of said charge he pleaded prior conviction of an assault with a deadly weapon under a former indictment charging assault with intent to commit murder. All of the charges arose out of the same facts. The court there said 77 Cal. 7, pages 8, 9, 18 P. 799, 11 Am. St. Rep. 225: “According to the testimony in this case, the first thing done by the defendant and his confederate was an attempt to intimidate and rob; the next was to attack with a deadly weapon. It cannot be the law that a man having assaulted another with a deadly weapon, and having also attempted, before that, to rob him, can escape punishment for the attempt to rob because of conviction for assault with a deadly weapon. If the offenses do not possess the same elements, although both relate to the same transaction, it would seem that both may be punished. This view of the law seems to have been taken by the supreme court of this state in the case of People v. Majors, 65 Cal. 138, 3 P. 597 [52 Am. Rep. 295, where many authorities bearing upon the matter in hand are cited and discussed. The offense of which the defendant was first convicted, was an effort to injure the person of the prosecutor with a deadly weapon: that of which he was last convicted, was an attempt to take away the goods of the prosecutor from his person by intimidation or violence. The essential elements of the two offenses are not the same.” (Italics ours.)

In People v. Pickens, 61 Cal. App. 405, 214 P. 1027, defendant, in pursuance of a conspiracy to force a taxi driver to leave town, robbed the taxi driver. He was charged in the same indictment with two counts, one of robbery and the other with assault with a deadly weapon. The question of the identity of the offenses because they arose out of the same transaction is there discussed, the court saying, 61 Cal. App. 405, at page 406, 214 P. 1027, 1028: “It is apparent that these facts permit the construction that the prime purpose of the conspiracy in assaulting Richey was not to rob him, but rather to drive him from the community, and that the robbery was an afterthought of one or some of the conspirators who took advantage of the opportunity presented to enrich themselves by appropriating Richey's money. Viewed in this light, the robbery was not a part of the same offense as the assault and the case is substantially identical with People v. Bentley, 77 Cal. 7, 18 P. 799, 11 Am. St. Rep. 225.”

The Bentley and Pickens Cases emphasize the fallacy of the same transaction test laid down by many cases. In a vernacular sense, the plurality of crimes committed in both cases arose out of the same continuous transaction, in which the defendants committed separate acts, which acts in themselves and without any dependence upon or aid from other acts generated separate crimes. It is undoubtedly true that a charge of robbery is pregnant with simple assault as distinguished from battery. Pen. Code, § 211. This does not mean, however, that a robber may not commit both assault and battery and robbery, depending upon the facts of each case. So a robber may intercept an intended victim and strike him with his fist or other weapon; this act, standing alone, constitutes an assault and battery. He may then proceed to rob his victim and assuming the force or fear essential to robbery is not related to the first blow, as may be and undoubtedly is frequently the case, the robbery is a separate crime. The robber, having completed his crime of robbery, might then to further impress his victim proceed to “slug” him, thus committing a third offense. All such offenses would be separate, because the corpus delicti of each could be proved without reference to or aid from the others.

In People v. Devlin, 143 Cal. 128, 76 P. 900, defendant was charged and found guilty of burglary. On the trial of said burglary charge, he offered as a bar the plea of a former conviction on the charge of petit larceny committed at the same time as the burglary and growing out of the same transaction. The court in passing upon said plea said, 143 Cal. 128, at page 129, 76 P. 900: “The plea of once in jeopardy, to be good, must be for the offense charged in the information. * * * Burglary is the entering of a building or structure with intent to commit grand or petit larceny or any felony. Pen. Code, § 459. Larceny is the felonious stealing or carrying away the personal property of another. Pen. Code, § 484. It is evident that one can commit burglary by entering a building with intent to commit any felony, such as rape, robbery, arson, or murder. It is also evident that the crime consists of the entry with the intent set forth in the statute. After one has entered a building with intent to commit any other felony than grand or petit larceny, he has committed burglary; but he may then find that it is impossible, for various reasons, to commit the felony which it was his intention to commit when he entered, and conclude to commit larceny by stealing some article of value in the building. He thus, in rapid succession, commits two crimes. Indeed, after he has committed burglary, he might, under favorable circumstances, commit any felony named in the statute. He might commit rape, and in such case he would be guilty of burglary and also of rape. Therefore we concluded that the evidence did not show, nor tend to show, that defendant had been before in jeopardy for burglary. The Legislature, no doubt, ‘may pronounce as many combinations of things as it pleases criminal, resulting not infrequently in a plurality of crimes in one transaction, or even in one act, for any one of which there may be a conviction without regard to the others.’ * * * ‘Larceny is not necessarily included in burglary, like manslaughter in murder, within the sense of the statute. On the contrary, it is no part of it. The offense of burglary is complete without any larceny being committed. The relation contemplated by the statute does not exist between burglary and such other felony, if any, as may chance to be committed by the defendant at the same time.”’ (Italics ours.)

In People v. Kerrick, 144 Cal. 46, 77 P. 711, 712, defendant stole some cattle and after completing the theft changed the brand on said cattle. He was first charged and convicted for a violation of section 357 of the Penal Code, to wit, changing or altering the brand on cattle. Later he was charged and convicted of larceny of the same cattle. He pleaded prior conviction. The court said: “No conviction could be had of the crime defined in section 357 of the Penal Code under an information charging only grand larceny. The former crime is not in any sense a necessary element of the latter, nor can it be said to be ‘necessarily included’ in the latter. * * * It seems, from the record before us, that the two crimes were not only distinct in law, but also in fact. The larceny of the cattle was completed on the 27th day of March, 1902, by driving them out of a pasture, where they were kept by the owner, with intent to steal them. The marks and brands were changed the day following, to prevent identification. Here were two separate and distinct criminal acts, committed on different dates, each constituting a crime in fact as well as in law, and each being also entirely distinct in name and statutory definition, and neither constituting a necessary incident to or part of the other.”

It has been generally held that burglary does not include larceny, or robbery, or assault with intent to kill. People v. Shaffer, 81 Cal. App. 752, 254 P. 666; People v. Case, 77 Cal. App. 477, 246 P. 1083; People v. Snyder, 74 Cal. App. 138, 239 P. 705; People v. Marzec, 108 Cal. App. 264, 291 P. 600. So it has also been held that a charge of rape does not include a violation of section 288 of the Penal Code. People v. Parker, 74 Cal. App. 540, 241 P. 401; People v. Anastasion, 79 Cal. App. 268, 249 P. 209.

In People v. Ryan, 74 Cal. App. 125, 239 P. 419, defendant was charged with seventeen counts of felonies, three of which consisted in the forging of three different checks which were uttered at the same time by the defendant. In this particular transaction, defendant was charged with two separate forgeries and one charge of uttering checks. Defendant contended that the utterance of all three checks was but one offense. The court said, 74 Cal. App. 125, at page 130, 239 P. 419, 421: “Appellant further refers to decisions which hold that the passing or utterance of several forged instruments at the same time constitutes but one offense. We are satisfied that the greater weight of authority is definitely in favor of this proposition. * * * But, on the other hand, it seems to have been held, with good reason, that the mere false making and forging of two separate instruments, although done at the same time, are separate and distinct offenses. * * * In the note, in 61 L. R. A. at page 822, the proposition is stated, followed by reference to a number of decisions, that the forgery of several instruments at the same time is regarded generally as the commission of a separate offense for each instrument. Evidently this statement referred to the direct act of forgery considered apart from the utterance of the instrument.

“Accepting the foregoing as a correct statement of the law, and remembering that utterance, or passing, of a check was charged in only one of the three counts, we conclude that appellant was correctly convicted and sentenced separately for the three offenses.”

In People v. McGrath, 94 Cal. App. 520, 271 P. 549, defendant was charged with driving an automobile over and along a public highway while then and there under the influence of intoxicating liquor. He pleaded not guilty. During the deliberations of the jury the foreman inquired of the court whether the jury could bring in a verdict of reckless driving. The court then of its own motion instructed the jury that “reckless driving” was an included crime. This was held error. The court, 94 Cal. App. 520, at page 525, 271 P. 549, 551, specifically pointing out the separate nature of the two crimes and demonstrating how one may drive in a most circumspect manner while under the influence of intoxicating liquor and that it “is wholly unessential to the establishment of the crime of reckless driving” that there be any “evidence of indulgence in intoxicating liquor.” It is worth noting, however, that 94 Cal. App. 520, at page 526, 271 P. 549, 551, the court says: “Whether or not a person charged, under section 367e of the Penal Code, with having operated or driven a motor vehicle while intoxicated which has resulted in the death or injury to any person, may be found guilty of the offense declared by section 112 of said act, that is, driving while under the influence of intoxicating liquor, is a question not involved on this appeal, and consequently we do not presume to pass upon it.”

In People v. McKee, 80 Cal. App. 200, 251 P. 675, 677, defendant was convicted upon a charge of manslaughter and also of violation of section 141 of the California Vehicle Act (hit and run). “The first point urged by appellant is that the defendant was twice placed in jeopardy for the same offense, maintaining as the foundation for this argument that the transaction upon which the two offenses are based is but a single one. Violation of section 141 of the Motor Vehicle Act is not included within or in fact related to the offense of manslaughter. There is a sort of illicit relationship between burglary and larceny, and yet they are not so wedded that a conviction cannot be had for both, although both of them grow out of the same continuous set of acts. * * * It cannot therefore be successfully argued that the defendant here was twice put in jeopardy. The acts constituting the second offense did not really commence until after the woman had been struck, at which time the first offense had been completed. This same circumstance is involved and considered in the connection between burglary and larceny, or robbery.”

In People v. Thal, 61 Cal. App. 48, 214 P. 296, defendant was originally charged with obtaining property under false pretenses. The information set forth the facts in detail, which were in substance, that defendant through the utterance of a fictitious check and representation to his victim that he had ample funds in the bank obtained from his victim certain property. On the morning of the trial, a motion was made by the district attorney to amend the information, which motion was granted. An amended information was thereupon filed in two counts, the first count being substantially the same as the original information with some inconsequential changes, but the second count charged for the first time a violation of section 476 of the Penal Code. Objection was made to the filing of the amended information, which was overruled. Upon the conclusion of the trial, the court directed a verdict of not guilty on the first count, and the defendant was convicted by the jury on the second count. The contention of defendant was “that since by the original information the only offense with which he was charged was that of obtaining property under false pretenses, said second count in the information charging another and different offense cannot be held to be an amendment of the original information within the meaning of section 1008 of the Penal Code permitting the amendment of informations.” The court said, 61 Cal. App. 48, at page 53, 214 P. 296, 298: “We are cited to no authority which would sustain such a conclusion. On the other hand, we are referred to the case of People v. Chober, 29 Cal. App. 627, 157 P. 533, which holds that under section 1008 of the Penal Code it is within the discretion of the trial court to permit a change in the charge against the defendant where the new or additional crime charged was included within the original offense as stated in the first information. That would seem to be precisely the present case. According to the original information, the defendant, in committing the crime of obtaining property by false pretenses, did so through the commission of the further crime of uttering and passing a fictitious check. Upon the authority of the case above cited, we therefore hold that the appellant's objection to the order of the trial court permitting the filing of the amended information in this case is not well taken.” (Italics ours.) A petition to have the cause heard in the Supreme Court was denied.

Of all the California cases thus far cited, the only ones which appear to be at variance with the test enunciated are People v. Helbing, People v. Stephens, In re O'Connor, and People v. McFarlan, supra. In People v. Helbing, 61 Cal. 620, the defendant had been convicted of battery. Thereafter he was charged with assault with a deadly weapon. He pleaded the prior conviction. The court held that the battery was no bar to the second charge. The court said, 61 Cal. 620, at page 621: “But the former conviction did not legally operate as an acquittal of the offense charged in the information, unless it was for an offense included within the offense charged; and that presents the question, whether the offense of ‘battery’ is included within or is an ingredient of the offense of assault with a deadly weapon, with a felonious intent.”

It will be noted from the foregoing excerpt that the court indorses the very doctrine enunciated, to-wit, that the test of whether an offense is necessarily included in another is whether it is an ingredient of such offense. In the Helbing Case, however, the court goes on to say that while battery includes assault, assault does not include battery, saying, 61 Cal. 620, at page 622: “But the less does not include the greater. Battery, therefore, includes assault, but assault does not include battery.” The case then refers to Commonwealth v. Roby, supra, upon which it apparently relies, and follows the Roby Case in the application of accepted principles without noting that the facts in Commonwealth v. Roby brought the Roby Case within exceptions not warranted by the facts of the Helbing Case. An attempt is made to reconcile the holding of this case in the case of People v. McDaniels, supra, 137 Cal. 192, page 195, 69 P. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81, where it was held that battery was included in the charge of assault with intent to commit murder and that jeopary on the battery charge barred a prosecution on the charge of assault with intent to commit murder. The case of People v. Stephens, supra, although later than that of People v. Majors, supra, disregards the doctrine of the Majors Case to the effect that burglary and crimes of the same or different degree, but each nevertheless several and distinct, may arise out of one act. It cannot be reconciled with the Majors Case, which is frequently referred to with approval by later California cases. In the case of In re O'Connor, 80 Cal. App. 647, 252 P. 730, O'Connor, as petitioner, made application for writ of habeas corpus having been convicted in the municipal court on three counts of a complaint and having been sentenced on each. One of the points raised in the application was that count one in the complaint charged the identical crime set forth in count three of the complaint, and having been convicted on count one, petitioner was in jeopardy as to the charge in count three. Count one charged the offense of larceny by trick and device; count three charged a violation of section 654b of the Penal Code, which has to do with false advertising concerning real property. In count three of the complaint, the specific acts charged were “for the purpose of misleading and deceiving the public generally, and to fraudulently induce the public to enter into obligations relating to said property and to purchase certain interests in said mining claim.” The conviction as to count one of the complaint was obtained upon the same evidence and based upon the same facts as was the conviction which was obtained on count three of the complaint. The court therein said, 80 Cal. App. 647, at page 651, 252 P. 730, 731: “It is urged that the defendant having been tried, convicted and sentenced under count 1, there can be no prosecution upon count 3, because the facts constituting the bases of both charges are identical. * * * The offense alleged by count 3 to have been committed is not necessarily included within that set forth in count 1. In a case where one is convicted of an offense necessarily included within another, and later is prosecuted for the greater, a plea of once in jeopardy will be sustained, for such conviction might have been had under the latter. The converse would also be true if the prosecution had begun with the greater offense, and there had been an acquittal, and subsequent prosecution attempted under the lesser charge. In such cases, and of course where the offenses charged are identical, there can be but one conviction and but one sentence. But where, as here, entirely separate and distinct offenses are charged in two counts, and one is not necessarily included within the other, a prosecution for one is no bar to a prosecution for the other, even though the same testimony may be applicable to both. In brief, count 3 charges the offense known as false advertising of real property. This offense became complete when the deceptive advertising matter was circulated with criminal intent. It is obvious that this false advertising is a distinct offense from larceny by trick and device as charged in count 1. The mere fact that the false literature was used as a part of the device through which the larceny was accomplished does not argue against the fact that the offenses are nevertheless separate and distinct. The latter involves as an essential element the taking of personal property of another. As to the former, the taking of property is not involved. The outstanding element of the offense of falsely advertising real estate is the publication and circulation of deceptive matter. It is complete without regard to whether or not any one is deceived or damaged. The statute is intended to protect the public from a certain prevalent and pernicious form of trickery, but publication is not essential to larceny by trick and device. Other distinctions might be pointed out, but these are sufficient to indicate that the offenses are separate and distinct and that one is not necessarily included within the other. While a single act may be an offense against two statutes, and thus constitute two crimes, if each statute requires proof of a fact additional to those involved in the other, an acquittal or conviction of either does not result in the defendant having been in jeopardy for the other. Morey v. Commonwealth, 108 Mass. 433.”

The opinion in the O'Connor Case is written by the same court which delivered the opinion in the Scofield Case, and is, in my opinion, at direct variance with the doctrine of the Scofield Case on the subject of jeopardy. It is not consistent with the doctrine of the California cases, which we have cited at some length and analyzed in detail, and is at direct odds with the doctrine of included offenses as stated in the case of People v. Thal, 61 Cal. App. 48, 214 P. 296, in which latter case the Supreme Court denied a hearing.

The case of People v. McFarlan, supra, may be reconciled on the theory that a plurality of separate crimes arose from the same act. If it cannot be included within that classification, then it like the O'Connor Case is not consistent with the weight of authority in this state.

Any effort to determine what is a necessarily included offense by the test enunciated depends upon the definitive nature of the crime charged, as applied to the facts of each specific case. In this case the charge is manslaughter. Manslaughter, in so far as it applies to the facts here, is defined in section 192 of the Penal Code as follows: “Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: * * * 2. Involuntary–in the commission of an unlawful act, not amounting to felony.” Every felony has as a necessarily included minor offense, the attempt to commit it. So also different felonies from the very nature of their definitions necessarily include different lesser offenses to a varying degree. It is trite to say that a charge of murder in the first degree includes murder in the second and also manslaughter, and that assault and battery includes assault. Involuntary manslaughter, because of its definition, may include any one or more of as many unlawful acts not amounting to a felony, as there are in the statute books. On such a charge, it is idle to say that the included crimes on a manslaughter charge must be as fixed as are the originally included crimes on the usual murder charge. To require such a literal adherence to the doctrine of included lesser offenses would, in my opinion, do violence to the language of the code sections. It is apparent that manslaughter may be committed in a myriad number of ways. It is equally apparent that what is an inherent and “necessarily included act not amounting to a felony” on one manslaughter charge may have no relation to another charge of manslaughter. Unlawful acts not amounting to a felony differ in accordance with the fortuitous circumstances by or through which they may be created, or the peculiar tastes, predilections, or impulses of the persons who commit them. What minor crime or crimes is or are included in the charge of manslaughter depends entirely upon the facts of each case. Thus, driving while intoxicated, reckless driving, or any one of a dozen traffic violations, all may be included in a charge of manslaughter or any one of them may be included, although none of them as abstract crimes is necessarily included in the other. On the facts of this case, the unlawful act without which there could be no manslaughter was the reckless driving. The reckless driving is therefore a necessary, essential, and integral part of the corpus delicti of the manslaughter charge. There is, in our opinion, no similarity between this type of case and those other California cases which have been referred to, in which distinctions are drawn between robbery and assault with a deadly weapon, robbery and larceny, burglary and larceny, violation of section 288 and rape, and others of a similar nature. An analysis of the facts of those cases in the light of the legal definition of the crimes charged, demonstrates that the facts necessary to prove one or the other of the crimes charged do not constitute any part of the corpus delicti of the other. Thus, in order to prove robbery, it is not necessary to prove a prior assault or battery, or a post robbery battery. In order to prove burglary, it is not necessary to prove larceny. In order to prove violation of section 357 of the Penal Code, it is not necessary to prove larceny. In order to prove violation of section 288 of the Penal Code, it is not necessary to prove rape, and the converse follows with reference to each situation. Larceny by trick and device, like manslaughter, may be committed in numerous ways. If the trick and device used happens to be a violation of a particular Code section and on a trial for larceny by trick and device the corpus delicti of that crime cannot be proved without proving in its entirety the violation of the Code section involved, then in our opinion the violation of the Code section is a necessarily included lesser offense, on the direct authority of People v. Thal, 61 Cal. App. 48, 50, 214 P. 296. It is for this reason that we believe that the O'Connor Case is not consistent with the weight of California authority.

The case of People v. Johnson, 82 Cal. App. 411, 256 P. 273, has been called to our attention. The defendant was convicted of the offense of practicing medicine without a license. The facts, as stated in the opinion, are as follows, 82 Cal. App. 411, page 412, 256 P. 273: “Two indictments were found against appellant by the same grand jury, upon the same date, based upon the testimony of the same witnesses, and upon identically the same facts and circumstances. In other words, the prosecution carved out of the same facts, acts, and circumstances two offenses; the first charge being that of abortion, and the second, practicing medicine without a license. The appellant was tried upon the charge of abortion and acquitted, and was thereby placed once in jeopardy of the charge of practicing medicine without a license; said charge being based upon the same alleged facts, acts and circumstances.”

On the facts of the Johnson Case, it seems clear on a general analysis, that the corpus delicti of the crime of abortion does not comprise within its elements, the right of a person to practice medicine. That such fact may have been proved can make no difference. Abortion may be committed by a layman or by a licensed surgeon. The corpus delicti of that crime comprises the acts done which constitute the abortion; whether the person who committed the acts is or is not licensed to practice has nothing to do with the corpus delicti of that crime. It is also undoubtedly true that the offense of practicing without a license is punished, not because an abortion was performed, but because an unlicensed person is not permitted to practice any kind of medicine or surgery without a license. If, instead of performing an abortion, defendant in the Johnson Case had successfully performed a necessary hysterotomy, and saved a life, he would still be guilty of practicing medicine without a license. If, however, in the Johnson Case, the proof on the charge of practicing without a license were the same act of abortion of which defendant had been already convicted (as seems to have been the fact), and not some other act which could have been classified as a practice of medicine, then it is submitted that the decision in the Johnson Case does violate the clear mandate of section 654 of the Penal Code. Elaborating further, for the purpose of illustration, the facts of the Johnson Case: Thus, if the person upon whom the abortion was performed had died, as a result of the abortion, and after the death of such person defendant had been charged with and tried for abortion, he would undoubtedly have been in jeopardy as to a subsequent murder charge, because the manner of the death, to wit, abortion, would be an essential and integral part of the corpus delicti of the murder charge. And, conversely, if defendant had been charged with murder and acquitted, he could not thereafter be prosecuted for abortion. This is the exact situation in the recent case of People v. Coltrin (Cal. App.) 48 P.(2d) 973, cited in the main opinion, and though a contrary view is there taken by the court, the view herein expressed seems to be indorsed in a separate concurring opinion by Mr. Justice Marks.

While in the instant case manslaughter was charged in general terms, it is undoubtedly true that it might have been charged specifically, for it is established that assault or an assault and battery may be committed upon a human being with an automobile as well as with an automatic. State v. Sudderth, 184 N. C. 753, 114 S. E. 828, 27 A. L. R. 1180; State v. Rountree, 181 N. C. 535, 106 S. E. 669; State v. McIver, 175 N. C. 761, 94 S. E. 682; State v. Leary, 88 N. C. 615. In the case of Lauterbach v. State, 132 Tenn. 603, 179 S. W. 130, in a similar situation, a defendant was charged with manslaughter in that he “‘unlawfully, feloniously, and recklessly’ drove [driving] an automobile upon John D. White, and thereby caused [causing] his death. ‘At the time,’ continues the indictment, ‘said Max Lauterbach was driving said automobile along St. Elmo avenue, a public thoroughfare, at a rate of speed in excess of 20 miles an hour, and in disregard of the presence of said John D. White. Whereby the grand jurors present that the said Max Lauterbach has committed involuntary manslaughter.”’ So in this case, the defendant might have been charged by an allegation of more specific ultimate facts. If he had been, there could be no question but that reckless driving was a necessary, essential, and integral part of the corpus delicti of the charge of manslaughter, and the Attorney General so concedes.

The effect of the Attorney General's concession is that a district attorney, by charging manslaughter in general terms, can deprive a defendant of a substantial right. If this be sound, then the constitutional right of a defendant can be swept away by a resourceful pleader. In the instant case it was stipulated that the facts which gave rise to the charge and conviction of reckless driving were identical with those which gave rise to the charge of manslaughter, and while the trial court found that the defendant had violated other provisions of the California Vehicle Act besides section 121 (Deering's Gen. Laws 1931, Act 5128), it was found that defendant had violated section 121. Under such circumstances, we see no alternative other than to hold that the charge of reckless driving was a necessarily included minor offense of the charge of manslaughter. The most recent case which applies the corpus delicti test on an analogous factual situation is that of People v. Burkhardt (Cal. App.) 50 P.(2d) 97, Mr. Presiding Justice Crail dissenting.

I am not unmindful of the dangers of the rule enunciated, but the entire subject of double jeopardy is fraught with pitfalls. Many courts suggest that the principle that jeopardy on a lesser necessarily included crime bars a prosecution for the greater has been subject to much abuse, and there are undoubtedly a greater number of unrecorded cases, which would cumulate proof in that regard. This, however, has been true for a long time, but, as pointed out, there is in theory at least the stop-gap that if there is any fraud or collusion in the initiation of prosecution for a lesser offense there is no jeopardy.

When the facts have all occurred and give rise to a grave criminal charge, which charge may necessarily include a number of lesser minor offenses, the people must trust those officials charged with the enforcement of its laws to properly execute the same. If a public official charged with the enforcement of laws makes an election which is detrimental to the state, the state is nevertheless bound thereby. As said in the case of People v. McDaniels, 137 Cal. 192, at page 198, 69 P. 1006, 1009, 59 L. R. A. 578, 92 Am. St. Rep. 81: “All criminal prosecutions are by the state, which is a single entity. It may choose its forum, and determine for what particular offense it will prosecute the citizen for a violation of the criminal law. It cannot complain if it has made an unwise selection, but, having made its selection and inflicted the penalty it has imposed for such violation, the constitution interposes for the protection of the accused, and declares that he shall not be twice put in jeopardy for the same offense, and this provision, being for the benefit and protection of the accused, is to be liberally construed.”

The majority opinion states that the reckless driving in the instant case “was not an offense necessarily or at all included in the misdemeanor charge,” and that “Under the misdemeanor charge in the police court, he could not have been convicted of manslaughter.” It is submitted that this argument is a fallacy even though so respectable an authority as Wharton seems to indorse it; Wharton on Criminal Pleading and Practice (9th Ed.) § 476, where it is said, “as at the time of conviction of assault there could have been no conviction of the homicide the prosecution of the homicide is not barred by the conviction of the assault.” Quoted in People v. Wilson, 193 Cal. 512, 515, 226 P. 5. Under our practice, no defendant can ever be convicted of an offense greater than the one charged. If the facts of a given case demonstrated murder in the first degree, and the charge brought thereon were one of manslaughter, can there be any doubt but that an acquittal or conviction on the manslaughter charge would completely bar a murder charge? If on such facts there is no bar, then there is no principle of once in jeopardy. It is also asserted in the majority opinion that “for the purposes of trial of the instant case this conduct of the defendant, when proved, was merely part of the evidence, * * * which in this instance was done ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ Penal Code, § 192.” This statement overlooks the fact that the information made no such charge and also the stipulation in the trial court made by the district attorney that the manslaughter charge grew out of the same act, to which the defendant had pleaded guilty in the police court. Further, it admits that defendant can be deprived of a right by a method of pleading. Also, it is submitted with due deference to my learned colleagues that it begs the question, because if there is a distinction between reckless driving as an “unlawful act” and reckless driving as a lawful act committed “in an unlawful manner,” then such a distinction makes the same act or omission punishable in different ways and is contrary to the clear and express mandate of section 654 of the Penal Code.

I conclude, therefore, that on the facts of the instant case, the crime of reckless driving is an offense “necessarily included” in the charge of manslaughter, and that defendant's plea of jeopardy should have been sustained.

An additional point has been raised that the judgment must be sustained because defendant's plea of once in jeopardy was not entered with the full formal requisites set forth in section 1017, subd. 4, of the Penal Code, which provides: “If he plead once in jeopardy: ‘The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court).”’ In this case the minutes of the court, as set out in the clerk's transcript, show: “The defendant is duly arraigned, states his true name to be as charged in the information, waives reading of the information and time to plead, regularly enters his pleas of Not Guilty and Once in Jeopardy and the trial of the action is thereupon set for. * * *” The cases of People v. Moronati, 70 Cal. App. 17, 21, 232 P. 991, and People v. O'Leary, 77 Cal. 30, 33, 18 P. 856, unquestionably require a rigid adherence to the mandate of the Code section. I feel, however, that the use of the word “regularly” in the minutes of the court definitely suggests that the plea was made as required by law. The fact that the clerk of the court is not authorized to enter a plea short-cutting the same in the manner the minutes show, in lieu of entering the plea as required by the Code, cannot in my opinion be held to penalize a defendant. Nor does the probability that a clerk may adopt such methods charge a defendant with the duty of overseeing the entries made by the clerk of the court. Furthermore, in this case an objection was made to the introduction of the evidence at the outset of the trial, and it was stipulated that the facts upon which the manslaughter complaint was issued were the same as those upon which the complaint for reckless driving had been issued, and under which defendant had been previously convicted. Thereafter argument was had on the objection to the evidence, which was confined entirely to the question of whether defendant had been in jeopardy, which argument was participated in actively by defendant's counsel, the court and the district attorney, and the reporter's transcript shows that this argument on the objection to the evidence took all of the first morning and a portion of the first afternoon of the trial. At the conclusion of this argument, the objection to the evidence was overruled, and the trial court voluntarily granted leave to defendant to renew the discussion at the conclusion of the People's Case. The discussion was renewed on a motion made by defendant to dismiss the information, which motion was discussed by the same parties also at great length and then denied. In addition, at the conclusion of the case, the court, after making a complete summary of the facts and finding defendant guilty, proceeded to make an exhaustive analysis of the legal questions involved and the practical consequences resulting from defendant's plea of once in jeopardy, which analysis by actual count covers approximately eight full pages of the reporter's transcript. Finally, in pronouncing sentence the following took place:

“The Court: * * * Is there any legal ground why the court should not proceed to pronounce judgment and sentence?

“Mr. McIver: No.

“The Court: You want to reserve the point you made as to being twice in jeopardy, don't you?

“Mr. McIver: I don't know whether this is the proper time; * * *

“The Court: That is why I am suggesting this. I don't want to cut you out by a statement that there is no legal ground why the court should not proceed to pronounce judgment and sentence.

“Mr. McIver: With that exception.

“The Court: That is what I wanted to be sure you had in the record.

“Mr. McIver: With the exception that I am still of the opinion that the boy has been once in jeopardy before this trial.”

And as the last word in the case, the court said: “I think you have a point (referring to the question of jeopardy) that should be taken care of, and I rather hope you will appeal it; and it will not annoy me a bit if you reverse me on this. I think it is a question that should be taken to the higher courts.”

To hold in the face of such a record that defendant is unable to avail himself of his plea of once in jeopardy, because the clerk of the court negligently failed to make the proper entry of said plea in the minutes, in my opinion, would be nothing short of farcical. In my opinion, the judgment and the order denying motion for a new trial and each of them should be reversed.

HOUSER, Presiding Justice.