PEOPLE v. BUFFUM

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District Court of Appeal, Second District, Division 3, California.

PEOPLE v. BUFFUM et al.

Cr. 4619.

Decided: November 28, 1951

Joseph A. Ball, Long Beach, for appellant Roy L. Buffum. Leonard Wilson, Los Angeles, for appellant Reginald L. Rankin. Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.

Roy L. Buffum, a physician and surgeon, and Reginald L. Rankin, a layman, were indicted for violation of section 182 of the Penal Code, in that they conspired to use certain means to bring about miscarriages which would be in violation of section 274 of the Penal Code. Section 182 makes it a felony for two or more persons to conspire to commit any crime which is a felony. Section 274 defines the crime of abortion and makes the offense a felony. Section 275, in brief, makes it a felony for a woman to solicit and take any substance or submit to the use of any means with intent thereby to produce a miscarriage. Overt acts of Buffum listed in the indictment consisted of conversations which he had with each of the four women, his giving one of the women a slip of paper (which contained Rankin's telephone number); and with respect to defendant Rankin, his meeting with the four women at an appointed time and place and transporting them by automobile to a place in Mexico. It will appear in the recital of the evidence that there was testimony as to these and other overt acts. Each defendant appeals from the judgment against him and from the order denying his motion for a new trial.

A statement of the evidence sufficient for our purpose may be made without a detailed recitation of the testimony. Each of four women appeared at the office of Dr. Buffum, stated to him that she was pregnant and asked him to relieve her of that condition. In each case the doctor declined to do anything himself. He told one woman he would see what he could do for her and if he could do anything she would receive a telephone call. To another woman who was accompanied by her mother he said: ‘A man will call you tomorrow,’ and that the cost would be $200. When woman number three explained her condition, the doctor said: ‘I never touch anything like that,’ and endeavored to persuade her to have her baby. He wrote down the telephone number which she gave him. She left his office, and did not see him thereafter. The fourth woman, divorced and unmarried, was advised: ‘Either to get married or find a good doctor.’ He gave her a telephone number which she wrote down. Shortly after these occurrences three of the women received telephone calls from Rankin. The fourth woman called a number Dr. Buffum had given her and talked with Rankin. Each woman explained her condition and her desire to be relieved of it. Rankin quoted the cost of an operation at $250 in some cases, and $500 in one case. Arrangements were made with Rankin by telephone for the women to meet him at a designated point in Long Beach. The appointments were kept, Rankin drove them to Tijuana where abortions were performed by a Dr. Estrada. Rankin then returned the women to their homes in California. The evidence with respect to the matters just related consisted of the testimony of the four women, and in one case the testimony of the mother of one of them. There was no direct evidence of any communication between Buffum and Rankin, although there was a strong inference that they were acting in concert. Defendants did not take the stand. Testimony was given by police officers that Buffum at the time of his arrest and afterwards made statements that he knew Rankin, knew that he was taking the women somewhere and that he had had previous dealings with him in such matters. This testimony was contradicted in material respects by a witness who heard the conversations. There was also evidence that Buffum had reimbursed the parents of one of the women for the cost of her hospitalization. So far as concerns the matter of evidence corroborative of the testimony of the women, it may be said that while we assume for present purposes that it was legally sufficient it was by no means of such weight as to force the jury to accept it as sufficient.

We shall consider first what we deem to be the most important and a decisive claim of error. It is the contention of defendants that the four women were accomplices in the offense of conspiracy to violate section 274, and that the jury should have been so instructed. They requested instructions so stating, and appropriate instructions as to the necessity for corroboration. These instructions were refused and none of like import were given. The court did not instruct with respect to the principles of corroboration, nor was the jury instructed as to the definition of accomplices. Pen.Code, sec. 1111. The court also refused an instruction that if the women aided and abetted in the offense charged, they would be principals in the commission of that offense. We are of the opinion that the women witnesses were accomplices and that the requested instructions should have been given. A contrary conclusion was reached by the court in People v. Stone, 89 Cal.App.2d 853, 202 P.2d 333. One of the defendants in that case, H. V. Stone, had been convicted only of the offense of conspiracy to commit abortion, although other defendants were convicted of committing abortions as well. Stone requested and the court refused an instruction that the women witnesses upon whom abortions were alleged to have been committed were accessories to the conspiracy and that the defendants might not be convicted of that crime unless the evidence of such witnesses was corroborated by other competent evidence. It was held that refusal of the instruction was not error. The court said in 89 Cal.App.2d at page 869, 202 P.2d at page 343: ‘Our courts have recently held definitely that a woman who voluntarily submits to an abortion is not, as a matter of law, an accessory to the crime of abortion charged under Section 274 against another person. People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; People v. Clapp [24 Cal.2d 935[835] 839, 151 P.2d 237]; People v. Malone, 82 Cal.App.2d 54, 68, 185 P.2d 870; People v. Alvarez, 73 Cal.App.2d 528, 531, 166 P.2d 896; People v. Wilson, 54 Cal.App.2d 434, 446, 129 P.2d 149. * * * Upon the reasoning of the last cited authorities, which hold that a woman who submits to an abortion is not an accessory to the crime of abortion prohibited by Section 274, it necessarily follows that, under the undisputed evidence of this case, that woman could not be an accessory to the crime of conspiracy charged against the defendants in the first count of the indictment. * * * If, upon a charge of abortion committed contrary to Section 274, the woman who submits thereto is not an accessory, certainly she would not be an accessory to an alleged conspiracy with other named defendants to commit that same abortion. The crime of abortion and that of conspiring to commit an abortion are separate and distinct offenses as provided by the California statutes.’ (Emphasis added.) We are of the opinion that the conclusion reached in the Stone case did not necessarily, or at all, follow from the holdings in the cited cases. Believing the court to have fallen into error, we cannot do otherwise than state our disagreement. With due respect for the court we are firmly of the opinion that its conclusion has no support in the cited cases, and that it is contrary to important and well settled legal principles. Essentially the holding in the Clapp case, 24 Cal.2d 835, 151 P.2d 237 was that in taking the conduct of a woman who participates in acts, through the use of substances or submission to an operation, with the intention of producing a miscarriage, and making of her acts a separate offense applicable to her, which is described and defined in section 275, it was the legislative intent to exclude her from guilt of violation of section 274. The woman was held not to be an accomplice under section 1111,1 inasmuch as she would not be liable to prosecution under section 274. In the Stone case the only reason given by the court for its conclusion was that since a woman cannot be prosecuted for a violation of section 274, her conspiring with others to bring about a violation of the section would not be a criminal offense. The decision necessarily rests upon the proposition that one who is not liable to prosecution for the commission of an offense cannot be guilty of the crime of conspiracy to commit that offense. This proposition was accepted without citation of authority or discussion as to whether such is the law. The Stone case was followed in People v. Miner, 96 Cal.App.2d 43, 214 P.2d 557 without discussion of the point. It appears from the briefs that the cases which establish a contrary rule were not cited to the court.

The prevailing rule, both state and federal, is that one need not be liable to prosecution for a given crime in order to be guilty of conspiracy to commit it.

The decisions are numerous and uniform. The leading federal cases are Williamson v. U. S., 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278, conspiracy to suborn perjury and U. S. v. Holte, 236 U. S. 140, 35 S.Ct. 271, 59 L.Ed. 504, conspiracy to violate the Mann Act, 18 U.S.C.A. § 2421 et seq. They have been cited and applied in cases of conspiracies with bankrupts U. S. v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 59 L.Ed. 1211; Shaffman v. U. S., 3 Cir., 289 F. 370; Tapack v. U. S., 3 Cir., 220 F. 445; Cohen v. U. S., 2 Cir., 157 F. 651; U. S. v. Rhodes, D.C., 212 F. 513, and in other conspiracy cases, U. S. v. Stevens, D.C., 44 F. 132, conspiracy to violate the census laws; Chadwick v. U. S., 6 Cir., 141 F. 225, conspiracy with a bank officer to fraudulently certify a check; Farnsworth v. Zerbst, 5 Cir., 98 F.2d 541, conspiracy with one having diplomatic immunity to violate the Federal Espionage Act, 18 U.S.C.A. §§ 794, 2388; Curtis v. U. S. 10 Cir., 67 F.2d 943, conspiracy to falsify records of a national bank; Ex parte O'Leary, 7 Cir., 53 F.2d 956, conspiracy to accept a bribe; U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 224, 60 S.Ct. 811, 84 L.Ed. 1129, conspiracy to violate the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1–7, 15 note; Vannata v. U.S., 2 Cir., 289 F. 424, conspiracy to violate the National Prohibition Act, 27 U.S.C.A. Among the conspiracy cases from state courts often cited by both state and federal courts are Solander v. People, 2 Colo. 48, and State v. Crofford, 133 Iowa 478, 110 N.W. 921; Others are Johnson v. People, 33 Colo. 224, 80 P. 133; State v. Gilmore, 151 Iowa 618, 132 N.W. 53, 35 L.R.A.,N.S., 1084; Fields v. State, 107 Neb. 91, 185 N.W. 400; Edwards v. State, 113 Neb. 698, 204 N.W. 780; State v. Timm, 244 Wis. 508, 12 N.W.2d 670; Kraut v. State, 228 Wis. 386, 280 N.W. 327; Commonwealth v. Mannos, 311 Mass. 94, 40 N.E.2d 291, 301, accepting bribe; State v. Myers, 36 Idaho 396, 211 P. 440, accepting bribe; State v. Martin, 199 Iowa 643, 200 N.W. 213, adultery; State v. Davis, 203 N.C. 13, 164 S.E. 737, 745. See also People v. Wood, 145 Cal. 659, 79 P. 367; Wharton on Criminal Law, 12th Ed., Vol. 1, sec. 786, p. 1079.

Accepting, as we must, the testimony of the women witnesses in the present case, it cannot be doubted that they actually conspired with the defendants to accomplish a violation of section 274. While it is true that they were immune from prosecution for violation of that section, it is only because the legislature created, by section 275, not an offense in addition to the one denounced by section 274, but a different and distinct offense for which, alone, they were liable to prosecution. It is clear from reading the two sections that there are acts which would be in violation of section 275 but not section 274. The Attorney General maintains that the reasoning of the court in People v. Clapp applies to the charge of conspiracy to violate section 274 and is authority for the proposition that the women here involved were not accomplices. As already stated, we cannot agree. As recognized in the Stone case, they are separate and distinct offenses. Agreements to commit crimes, followed by overt acts, are themselves crimes. We think there are sound reasons for our opinion that exemption from prosecution for the crime agreed to be committed is not exemption from liability to prosecution for conspiracy to commit it.

In People v. Lima, 25 Cal.2d 573, 154 P.2d 698, 701, the court stated the rule that one who receives stolen property and the thief, are ordinarily not accomplices in either crime but recognized an exception to the rule in the following language: ‘Where, as here, the prosecution evidence discloses the existence of a conspiracy or agreement whereby the principal prosecution witnesses were to steal and defendant was to purchase the stolen property, it is both logical and reasonable to hold that they are accomplices in the offense or offenses resulting from execution of such plan.’ Speaking of the holding in People v. Clapp, 24 Cal.2d 835, 151 P.2d 237, supra, the court said: ‘We announced the rule that where the commission of a crime as defined in a statute requires participation of two or more persons but prescribes punishment for the acts of certain of the participants only, and another statutory provision prescribes punishment for the acts of others not subject to the first provision, the acts so distinguished are punishable as a separate and distinct crime and the statutory provision specifically defining the separate crime supersedes the general provisions of section 31 of the Penal Code which makes a person who aids and abets in the commission of any crime a principal therein. The present case, however, does not relate to a situation where different statutory provisions separately prescribe punishment for the acts of certain participants in a crime. On the contrary, the same sections of the Penal Code, namely, sections 489, 490 (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.’

Although a woman who solicits and submits to an abortion is not an accessory in the attempted or committed offense she nevertheless conspires to procure the commission of the crime. She is subject to prosecution under section 182, if that section means what it says.2 It specifies no exception. The implied exclusion of the woman from prosecution under section 274, recognized in People v. Clapp, has no parallel in a prosecution for conspiracy. An agreement to violate section 274 falls within the conspiracy section 182, namely, as a conspiracy to commit ‘any crime.’ If we were to hold otherwise, we would not only have to disregard the settled principle that amenability to prosecution for an objective crime need not exist in order that those who conspire to commit the crime or cause it to be committed may be guilty of conspiracy, but we would also have to indulge in judicial legislation on the subject, by narrowing the scope of section 182 in a material respect. The crime of conspiracy is not limited by statute to conspiracies to commit crimes for which the conspirators are liable to prosecution. If immunity of a woman from prosecution for conspiracy to violate section 274 exists for the reason that she is not liable to prosecution under that section, the same would be true of conspiracy to commit any other crime for which one of the conspirators would not be subject to prosecution. As we have said, to so delimit the scope of section 182 would be judicial legislation amounting to a rewriting of the section.

In concluding that the women witnesses in the present case were accomplices in the offense charged, we believe we are conforming to the policy of the State, as defined by legislation on the subject. It is declared in section 1108 of the Penal Code that upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence. Whatever may have been the considerations which led the legislature to erect this shield for the protection of those accused of the crime of abortion is of no moment. They were sufficient for the legislature, and the enactment was intended not only to shield the accused from conviction, but also from prosecution where the evidence would be merely that of the woman involved. But if the woman be held not to be an accomplice in conspiracy to violate section 274, then, notwithstanding section 1108, the accused could be charged with conspiring to violate section 274 and convicted upon her uncorroborated testimony. If such were the case, section 1108 would fail of its purpose, since every abortion, unless self induced, involves an agreement to commit it.

In People v. Lima, supra, 25 Cal.2d 573, 154 P.2d 698, 701, this ground of objection to dispensing with the necessity for corroboration of the testimony of those who are, in reality, accomplices, was pointed out by the Supreme Court. Immediately following its holding that the evidence disclosed the existence of a conspiracy to steal the property, and also for its purchase by one of the conspirators, the court said: ‘If we were to allow the conspiracy element to be disregarded and the accomplice relationship thereby eliminated, the prosecution could circumvent the rule, requiring corroboration of accomplice witnesses.’ A situation in which the accused could not be convicted of violation of section 274 because of the lack of corroboration of the testimony of the woman witness, and yet could be convicted of conspiracy to commit the offense upon her testimony alone, would be illogical and inconsistent. We cannot hold this to be the law.

There is yet another reason which lends support to our views. If it were true that because a woman cannot be prosecuted under section 274 she cannot unlawfully conspire with others for the commission of an abortion upon herself, it would follow that her conspiracy with another person for the commission of acts in violation of that section would not be conduct for which either could be prosecuted, since, without her assent, there could be no agreement or conspiracy. This would also be true of any conspiracy between two people, one of whom could not be prosecuted for commission of the agreed crime. Section 182 contains no such exception. The case law is that there is none.

There can be no doubt that upon the evidence the four women, as well as the defendants, were subject to prosecution for conspiracy to violate section 275, even though they may not have been guilty of acts within this State which constituted a violation of that section. If they had been thus charged, all would have been accomplices whose testimony would require corroboration. It would be illogical if, for identical acts, conviction could be had for conspiracy to violate section 274 upon the uncorroborated testimony of the women, when the contrary would be true of conspiracy to violate section 275. All the confusion and inconsistencies we have pointed out are avoided when we give effect to the absence of any exception in section 182, and the absence of any other enactment, indicating a legislative intention to give women immunity from liability for conspiracy to violate section 274.

Defendants' instructions with respect to the necessity for corroboration should have been given. We do not feel assured that the verdicts would not have been different had they been given.

Another claim of error is that the court refused an instruction requested by defendant Buffum that he should be acquitted if the jury found he agreed with the women to assist them but did not have an agreement with Rankin that they would both render them assistance. The court noted as a reason for refusing the instruction: ‘Girls might be guilty of conspiracy to violate section 275, not section 274.’ This was precisely the point defendant Buffum was making. He also could have been guilty of conspiracy to violate section 275. It was his contention that if the evidence disclosed that he made any agreement, it was with the women and not with Rankin. Proof of a conspiracy with the women to violate section 275, would not have supported a conviction of Buffum of the offense charged. In view of the women's testimony as to Buffum's willingness to help them, and the absence of direct evidence of any agreement between Buffum and Rankin, there was a basis in the evidence for the contention advanced in the requested instruction. It was for the jury to determine under proper instruction whether this theory of defense advanced by defendant Buffum was reasonable. Even if full credit had been given to the testimony of the women, the jury could have entertained a doubt as to whether a conspiracy existed between Buffum and Rankin. We do not question that the circumstances strongly indicated the existence of such an agreement, but we cannot say that it was an inference the jury would have been required to draw. In the absence of instructions the jury could not have been expected to distinguish between a conspiracy to violate section 274 and one to violate section 275. It is a technical distinction, but it went to the foundation of the offense charged and the defense urged by Buffum. Defendants' argument that proof of an agreement between Buffum and the women, and of a separate agreement between Rankin and the women, would not of itself prove an agreement between Buffum and Rankin, could have been of little force or effect without an instruction such as the one requested. It was error to refuse the instruction. People v. Carmen, 36 Cal.2d 768, 228 P.2d 281.

Both defendants insist that an agreement in California to procure the commission of a crime in Mexico, followed by acts consistent only with an intent to consummate the crime outside the State, is not an offense under the laws of this State. They requested instructions to this effect, which were refused. They also contend, for like reasons, that if the conspiracy was to commit abortions in Mexico there was a fatal variance between the indictment and the proof. They insist that if any agreement and any overt acts were proved they were for the commission of offenses in Mexico and, further, that if the evidence was not conclusive to this effect it was a question for the jury to decide.

The thread of the argument is: California cannot punish for abortions committed in Mexico; therefore the commission of an abortion in Mexico is not a crime under section 274; the conspiracy must be one to commit acts which would constitute a crime under the laws of California; abortions committed in Mexico are not crimes under our laws; wherefore, a conspiracy to commit abortions in Mexico is no crime at all. We agree with everything but the conclusion. Section 182 must be given a meaning which is consistent with a broad purpose to punish all activities which our laws define as crimes. A construction which favors effectiveness must prevail over one that would place criminal forces and activities beyond the reach of the law.

The overt acts were charged in the information to have been committed in this State.3 We have concluded that if they were shown to have been committed to effect the object of an agreement to commit abortions the prosecution was required to go no further in order to prove the offense; it was immaterial whether other acts were committed or agreed to be committed elsewhere.

Acts which are essential under a charge of conspiracy bear a relationship to acts ‘in execution or part execution’ of an intent to commit a crime, which, under section 778a give the courts of our State jurisdiction to punish for a crime that is completed elsewhere. Whenever our courts have denied jurisdiction for territorial reasons it has been because no act constituting an essential ingredient of the crime was committed within the State. See People v. MacDonald, 24 Cal.App.2d 702, 76 P.2d 121; People v. McGowan, 127 Cal.App. 39, 14 P.2d 1036. Where jurisdiction has been upheld in cases of offenses committed partly in this State and partly elsewhere it has been because some act essential to a completed offense was committed within the State. People v. Harden, 14 Cal.App.2d 489, 58 P.2d 675.

If it were not for the principle stated in section 778a such acts would go unpunished. If, as defendants contend, the crime of conspiracy embraces only those agreements which plan consummation of the objective acts within the State we would have an absurd situation. Acts in part execution of an intent to commit a crime which would render one answerable for the objective crime under section 778a would not amount to a conspiracy under section 182. And yet the criminal intent and the overt acts in each case would be equally vicious and effective. There is no such inconsistency. If the objective crime is committed elsewhere, section 778a applies; if it is planned and partly executed within the State, section 182 applies, even though it is never consummated. We therefore reject the proposition that one may in California agree to commit acts which our laws declare to be crimes, proceed up to the State line in furtherance and part execution of the object of the agreement, consummate the crime over the border and say that he has committed no crime in California.

Defendants' instructions to the effect that it is not a crime to conspire within this State to commit a crime elsewhere were properly refused. The People were not required to prove the agreement was to commit abortions in California. Under the views we have stated, even if the agreement had been to commit them in Mexico and sufficient overt acts had been committed in California, there would have been no variance in substance between the indictment and the proof.

Defendants complain of error in the introduction, over their objection, of evidence that abortion is a crime under the laws of Mexico. Their contention is that the jury may have been confused by this evidence to the extent of believing that evidence of a conspiracy to violate the laws of Mexico, rather than those of California, would justify a conviction. They point out that no instruction was given that defendants were charged with conspiring to violate a law of California. The evidence was wholly immaterial, confusing, and clearly inadmissible for any purpose. We cannot hold the error to have been prejudicial in view of our conclusion that proof of an agreement to commit abortions in Mexico and of the overt acts, would have sustained a conviction of the offense charged.

The court gave an instruction on direct and circumstantial evidence, reading as follows: ‘Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, if adequately convincing, juries may lawfully find an accused guilty of crime. One is direct evidence and the other is circumstantial. Direct evidence of the commission of a crime consists of the testimony of every witness who, with any of his own physical senses, perceived any of the conduct constituting the crime, and which testimony relates what thus was perceived. All other evidence admitted in the trial is circumstantial, and insofar as it shows any acts, declarations, conditions or other circumstances tending to prove a crime in question, or tending to connect a defendant with the commission of such a crime, it may be considered by you in arriving at a verdict. The law makes no distinction between circumstantial evidence and direct evidence as to the degree of proof required for conviction, but respects each for such convincing force as it may carry and accepts each as a reasonable method of proof. Either or a combination of both will support a verdict of guilt if it carries the convincing quality required by law, as stated in my instructions.’

Defendants requested the following instruction: ‘Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, juries may lawfully find an accused either guilty or innocent of an offense charged. One is direct evidence and the other is circumstantial evidence. Direct evidence consists of the testimony of every witness who, with any of his own physical senses, perceived any conduct or act. All other evidence admitted in the trial is circumstantial, and insofar as it shows acts, declarations, conditions, or other circumstances, it may be considered by you in arriving at a verdict. The law makes no distinction between circumstantial evidence and direct evidence, but respects each for such convincing force as it may carry and accepts each as a reasonable method of proof.’ This instruction was refused. The one that was given spoke only of the circumstantial evidence which tended to prove the commission of the crime and which would support a verdict of guilt, thus ignoring the circumstantial evidence that might have been favorable to the defendants. It placed undue emphasis upon the circumstantial evidence relied upon by the People. It was especially harmful because the People were depending entirely upon circumstantial evidence to prove the alleged conspiracy. The defendants did not testify. Their defense was that the circumstances in evidence were consistent with non-existence of a conspiracy between them. The instruction they requested was fair and adequate. It was error to refuse it and to give the one that invited a consideration of the circumstantial evidence solely from the viewpoint of the prosecution. However, we do not hold the error to have been sufficiently prejudicial to justify a reversal. Other instructions were given to the effect that a conviction could not be had upon circumstantial evidence unless it was found to be consistent with guilt and inconsistent with innocence. These instructions minimized the effect of the error of directing special attention to the circumstances which were consistent with guilt, but the error remained. But in so holding we would observe that the continued use of an erroneous instruction cannot be justified by the fact that in various circumstances the error is not of sufficient gravity to cause a miscarriage of justice. It cannot be said too often that the primary requisite in the statement of guiding legal principles by means of instructions is utter impartiality and freedom from emphasis which tends to favor either of the parties.

The judgments and orders denying motions for new trial are reversed.

FOOTNOTES

1.  Sec. 1111. ‘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.’

2.  Section 182. ‘If two or more persons conspire:‘1. To commit any crime;‘2. Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime;‘3. Falsely to move or maintain any suit, action or proceeding;‘4. To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform such promises;‘5. To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.‘They are punishable as follows:‘When they conspire to commit any felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of the said felony.‘When they conspire to do any of the other acts described in this section they shall be punishable by imprisonment in the county jail for not more than one year, or in the State prison for not more than three years, or by a fine not exceeding five thousand dollars ($5,000) or both.‘All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect such conspiracy shall be done.’

3.  Section 184, Pen.Code. ‘No agreement amounts to a conspiracy, unless some act, besides such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.’

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.

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