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District Court of Appeal, Third District, California.


Cr. 2010.

Decided: January 08, 1948

Goldstein, Barcelouz & Goldstein, of Chico, Miller & Kroloff, of Stockton, J. Oscar Goldstein, of Chico, and Jack J. Miller, of Stockton, for appellant. Fred N. Howser, Atty. Gen., Leonard M. Friedman, Deputy Atty. Gen., of Sacramento, Chester E. Watson, Dist. Atty., of Stockton, and Doris Maier, of Sacramento, for respondent.

The defendant herein has appealed from his conviction under Penal Code section 32 of being an accessory to the murder of the incurable spastic daughter of one Jeanette Pax, for which crime the latter had been tried and convicted as principal prior to the trial of defendant. He also appeals from the order of the trial court denying his motion for a new trial.

The evidence adduced at the trial consisted largely of the testimony of the murderess implicating the defendant as actively participating in aiding her to dispose of the body of her murdered child by driving her in his car to an isolated spot and helping her to dig a grave and inter the remains. The witness also testified that although the defendant did not participate in the crime he had encouraged her to take the life of her child and had suggested means of accomplishing this purpose but that she did not pursue any of the means suggested by him.

The basis of appellant's argument on appeal is the assertion that as Jeanette Paz was his accomplice and her testimony is uncorroborated, therefore the trial court committed reversible error in refusing to instruct the jury on the question of corroboration of an accomplice.

The question which this court must first consider and which, if answered in the negative, not only disposes of the first of appellant's contentions but also makes unnecessary any consideration of the questions of the failure of the trial court to instruct the jury and the existence of corroborating evidence, is: Was Jeanette Paz, a convicted principal to the crime of murder, an accomplice of defendant Wallin who was charged with being an accessory, within the meaning of Penal Code section 1111, which defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in whih the testimony of the accomplice is given’?

The respondent in support of the verdict and the attacked rulings of the trial court maintains that inasmuch as she could not be an accessory to her own crime she there fore could not be an accomplice of defendant Wallin because she is not liable to prosecution for the identical offense charged against him.

Prior to the 1915 amendment to section 1111 as above quoted, the Supreme Court defined accomplices as ‘All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or did aid and abet in its commission, or, not being present, have advised and encouraged its commission.’ People v. Coffey, 161 Cal. 433, 439, 119 P. 901, 903, 39 L.R.A., N.S., 704. The court in that case specifically rejected the definition of an accomplice as one who may be indicted for the same crime as that charged against the person on trial, and in this connection stated: At pages 443, 444, of 161 Cal., at page 905 of 119 P., ‘One who is an accomplice, we repeat because of what he has done, and not because of the form of punishment which the law may mete out for his acts. Wherever the law has denounced as a separate crime the particular act of participation by an accessory or accomplice, the sole logical and legal effect is not to destroy the relationship of accomplice, but merely to effect a modification of section 31 of the Penal Code, as though by an express proviso it should read, ‘All persons concerned in the commission of a crime,’ etc., ‘are principals in any crime so committed, provided that they shall not be indicted as principals in any case where the law has denounced their participation as a separate crime and declared that they shall be prosecuted exclusively for such separate crime.’ But this, as we have said, does not and cannot, by any species of legal hermeneutics or legerdemain, relieve an accomplice of his character of accomplice. It is merely prescribing a separate punishment for the particular act of one who is still an accomplice.'

The amendment to section 1111 providing a legislative definition of an accomplice which is clear and unambiguous and contra to the rule laid down in People v. Coffey, supra, requires that an accomplice must be one who is liable to prosecution for the identical offense charged against the defendant. Under this statutory definition mere cooperation in acts which will subject the parties to prosecution for separate and distinct offenses does not make them accomplices. People v. Clapp, 24 Cal.2d 835, 151 P.2d 237. This change in the law defining accomplices is well marked out by the fact that the decision in People v. Coffey, supra, held the gier of a bribe to be an accomplice of one charged with receiving the bribe, whereas, subsequent to the amendment to Penal Code section 1111 the cases have consistently held that such persons are not accomplices. See People v. Davis, 210 Cal. 540, 293 P. 32. Neither are the perjurer and the suborner (People v. Nickell, 22 Cal.App.2d 117, 70 P.2d 659), nor the woman who submits to an illegal operation and the one charged with abortion (People v. Clapp, supra), nor the thief and the receiver of stolen goods (People v. Burness, 53 Cal.App.2d 214, 127 P.2d 623), accomplices, although each is liable to criminal prosecution for participating in the act or transaction.

A clearer analogy to the question posed herein is found in those cases of other jurisdictions where it has been held that a prisoner who has been aided to escape by an outsider is not an accomplice of such outsider was furnished him with the means of escape. Ash v. State, 81 Ala. 76, 1 So. 558; State v. Duff, 144 Iowa 142, 122 N.W. 829, 24 L.R.A.,N.S., 625, 138 Am.St.Rep. 269; Bryce v. State, 130 Tex.Cr.R. 243, 93 S.W.2d 426.

In order to avoid a circuity of reasoning in reaching a solution to the problem presented on this appeal it is necessary to bear in mind certain basic facts and principles. Firstly, Jeanette Paz is shown to be the principal to the crime of murder not only by her conviction on that charge, but also by her testimony at the trial of this defendant. Secondly, the defendant herein is not on trial for the crime of murder, but for violation of Penal Code section 32 in that he aided Jeanette Paz with the intent that she might avoid arrest, trial, conviction or punishment, having knowledge that she had committed the murder. Thirdly, it must be taken as axiomatic that one cannot be an accessory after the fact to his own crime. To hold otherwise would be analogous to stating the absurdity that a minor who purchases cigarettes might be charged not only with the illegal purchase, but also with contributing to the delinquency of himself as a minor. While it is true that from an abstract point of view one who is in truth and fact a principal to a crime might, for lack of evidence on such charge, be tried and convicted on the only evidence available of being an accessory to such crime, the practical possibility of the occurrence of such a circumstance does not detract from the truth that one cannot be tried and convicted of both charges. The clear language of Penal Code section 32 admits of no other construction than that the status of one guilty of the crime therein defined is inconsistent with and contributory to that class of participants included within section 31. Authorities are not lacking which hold that one cannot be both a principal and an accessory after the fact to the same crime (Regina v. Brannon, 14 Cox C.C. 394: People v. Chadwick, 7 Utah 134, 25 P. 737), although a complete absence of the statement in the reports might be expected from the unaffectedly simple nature of the inquiry.

The appellant further contends that the testimony of Jeanette Paz establishes the existence of a conspiracy between her and the defendant to murder the child, and therefore, the two being co-conspirators, are accomplices. In support of this argument reliance is placed upon People v. Lima, 25 Cal.2d 573, 154 P.2d 698, wherein it was held that in a prosecution for receiving stolen property the thief was an accomplice of the receiver, where the parties conspired in a prearranged plan for one to steal and the other to purchase the stolen goods from the thief. The court therein, however, did not depart from the statutory definition of an accomplice, but strictly applied it, specifically stating that by reason of the conspiracy between the parties each was liable to prosecution for either offense. In distinguishing and commenting upon the case of People v. Clapp, supra, the court stated: ‘The present case, however, does not relate to a situation where different statutory provisions separately prescribed punishment for the acts of certain participants in a crime. On the contrary, the same sections of the Penal Code, namely, sections 489, 190 (theft) and section 496 (receiving stolen property), provide for the punishment of the acts perpetrated by each and all of the parties in execution of the conspiracy or prearranged plan to deprive owners of their olives. Section 31 of the Penal Code is therefore applicable to each of them since there is no provision superseding that section. And while, as stated above, the prosecution under the peculiar facts of this case may have had a right to elect which of the group should be prosecuted for theft and which for receiving stolen property, it could not thereby eliminate the conspiracy element and resulting accomplice relationship.’ At page 579 of 25 Cal.2d, at page 701 of 154 P.2d.

In substance the position taken by the appellant on this point amounts to an assertion that he is guilty of a more serious crime than that with which he is charged, i. e. a principal in the crime of murder together with Jeanette Paz. In People v. Lima, supra, the designation of accomplice attached not because the testimony of the witness implicated the defendant in another crime of which both the witness and the accused were guilty (but for which the accused was not then on trial), but because the testimony of the witness implicated himself in the identical crime with which the defendant was charged. Herein lies the distinction between the Lima case and the argument of the appellant here that the testimony of Jeanette Paz involves him in the crime of murder by showing what he alleges to be a conspiracy between them to dispose of the child by killing it. If the testimony of this witness had established herself as being an accessory after the fact together with the defendant by means of a conspiracy to commit that crime, then the argument would be valid, but its fallaciousness is indicated by the impossibility of Jeanette Paz being both an accessory and a principal.

A different situation might have presented itself had Jeanette Paz not stood convicted of the crime of murder at the time of defendant's trial, or had she not testified so decisively as to her status as a principal.

The definition thus followed and which the legislature has codified, namely, that one is an accomplice who is liable to prosecution for the identical offense charged against the defendant on trial, is in accord with what would appear to be the only rational theory for the existence of the rule requiring corroboration of the testimony of an accomplice—the possibility that the witness may be seeking to save himself by procuring the conviction of others upon the promise or expectancy of immunity or leniency. (See Wigmore in his treatise on Evidence, 3d Ed., Vol. VII, page 322.)

We conclude that Jeanette Paz, having been convicted of the crime of murder, and such conviction not having been reversed at the time of the defendant's trial, and she further having testified positively as to her own acts in killing the child, could not be liable to prosecution as an accessory and therefore could not be an accomplice of defendant Wallin.

Finally, appellant alleges prejudicial misconduct on the part of the district attorney as grounds for reversal. The first of two instances cited on this point consisted of a comment by the district attorney in his argument to the jury upon the failure of the defense to make a motion for an advisory verdict, or for ‘dismissal or instructed verdict’ as he called it, at the close of the prosecution's case. No authority is cited to support the contention that such comment prejudiced the appellant's case before the jury by giving them ‘the false impression that counsel for appellant had the right to move for a dismissal of the case or an instructed verdict.’ The loose terminology was immaterial in its possible effect upon the jury; to the lay mind ‘instruct’ being synonymous with ‘advise’. See People v. Ward, 145 Cal. 736, 79 P. 448.

The second instance of alleged misconduct consisted of the district attorney's statement to the jury in connection with the arrest of the defendant, ‘I did not think I had sufficient evidence to charge him with murder; to me, the evidence unmistakably, conclusively and convincingly pointed to his complicity in the disposal of that body, with knowledge of what she had done.’

This comment on the circumstances of the appellant's arrest and the factual evidence which led to the arrest to which the district attorney refers after making this comment is entirely dissimilar to those cases cited by appellant, (People v. Hidalgo, 78 Cal.App.2d 926, 179 P.2d 102, and cases therein cited) in which it was held that a district attorney's statement of his own opinion as to defendant's guilt unsupported by evidence before the jury, or a statement that he would not prosecute a defendant unless convinced of his guilt, constitutes prejudicial misconduct. No such statement was made here and appellant has failed to point out any prejudice resulting from the quoted comment.

In view of the record as a whole, we cannot say that a miscarriage of justice has resulted as a consequence of these statements to the jury. Art. VI, sec. 4 1/2 Const.

The judgment and order are affirmed.

PEEK, Justice.

THOMPSON, J., concurs.

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