119 P. 901 | Cal. | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *435
Defendant was indicated under section
From the judgment of conviction and from his various motions to set aside the judgment, in arrest of judgment, and for a new trial, each of which was denied by the court, defendant appeals. His principal contentions are that the court erred in the instructions which it gave upon the law of accomplices, and, that his conviction was had in violation of the law, upon the uncorroborated testimony of a self-confessed accomplice in his asserted crime.
When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury touching the law of accomplices, and leave the question whether or not the witness be an accomplice for the decision of the jury as a matter of fact. (People v. Kraker,
To the consideration of what constitutes a man an accomplice in a bribery case we are thus at once brought, and to an understanding of these matters a brief statement of the evidence becomes necessary. The principal witness for the prosecution was Gallagher, himself a supervisor. Gallagher, by his own statements, was testifying under a promise of immunity, agreed to by the prosecution, in consideration of his giving truthful evidence touching his own crimes, and the crimes of others on the board of which he was a member, including the crime under examination. He swore that he acted as the intermediary of Abraham Ruef and for Ruef approached and consulted with his fellow members on the board in relation to the corrupt bargains which were, and were to be, entered into, and the amounts of money which the members of the board were to receive for voting as Ruef desired. In this particular instance Gallagher spoke to Coffey, at the suggestion of Ruef (quoting from his testimony): "Mr. Ruef told me what he could or would give the board of supervisors in the matter, and asked me to present the proposition to them and I did so, and I reported back to Mr. Ruef from them that it was all right, that the matter could go through." "I said to Mr. Coffey in the matter of the overhead trolley, that there would be $4,000 in that matter, and Mr. Coffey said that that would be all right; words to that effect. That is the substance of it." The trolley franchise was granted, and subsequent thereto, Gallagher testifies, he gave to Coffey $4,000 in two separate payments. This evidence, coming from the prosecution itself, is uncontroverted, and presents the legal question whether, by virtue of it, Gallagher was an accomplice of Coffey in the corrupt agreement thus charged and proved.
The rules of law and principles of evidence controlling the testimony of accomplices, are drawn from the common law.
The difficulty which the common law judges experienced *438
was not in determining the weight to be given to the testimony of an accomplice. Under their rules of evidence a convicted felon could not testify. Influenced in no small degree by the maxim of the Roman law that a man of self-confessed infamy should not be heard as a witness against another (Nemo, allegans turpitudinemsuam, est audiendus), their principal difficulty was in determining whether the oath and evidence of a self-confessed though unconvicted felon — an accomplice — should be received at all. When this question was resolved against the doctrine of the Roman law it was, of course, recognized that evidence of an accomplice, coming from a tainted source, the witness being, first, an infamous man, from his own confession of guilt, and, second, a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man, free from infamy. Hence, it soon became the practice of the common law judges, in the wide latitude allowed to them in the instruction of their juries, to advise the latter that the testimony of an accomplice, for the reasons indicated, was to be viewed with care, caution, and suspicion (see Code Civ. Proc., sec. 2061), that the accomplice stood before them as a witness entitled to little credit, and that the surest way of establishing his credit in their eyes was for them to note whether his testimony was corroborated in any material matter by independent evidence, and that if it were so corroborated they might put faith in all that the accomplice had said. Instructions to this effect did not, of course, embody any rule of positive law. They were but the expression of considerations naturally arising from a contemplation of the weight and value to be given to such evidence. Subsequently they were cast into the form of positive law by varying enactments in the codes and statutes of the states. In this state, the rule of positive law since the year 1851, is as has been declared in section
But while the legislature was thus at pains to declare that a conviction could not be had on the uncorroborated testimony of an accomplice, it omitted to define this word. At common law no difficulty was experienced, for the word was interpreted *439 broadly to include principals in every degree and accessories before and after the fact. Those who "receive, relieve, comfort or assist" the felon, were regarded as having participated in his crime, and as meriting much the same punishment that he had earned. And so it will be found that at common law, and in the jurisdiction of the federal courts an accepted definition of an accomplice includes "all participes criminis, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact." (In re Rowe, 77 Fed. 161, [23 C.C.A. 103].)
Although the legislature did not in terms define an accomplice, it did lay down certain rules from which an acceptable definition of an accomplice may readily be derived. Thus it obliterated the common-law distinctions between principals in their different degrees and accessories before the fact, and declared that "all persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed." (Pen. Code, sec.
Rejecting from the category of accomplices the accessory after the fact (People v. Collum,
Having reached the point of defining an accomplice, it becomes proper to consider what acts or facts fix this relationship or characteristic upon a witness. Manifestly, the single, sole determinative consideration is the part which the witness has borne in the crime perpetrated. If the witness has committed the crime, if he has knowingly aided and abetted in its commission, or if he has advised and encouraged its commission, the existence of any one of these facts admitted or established stamps hisstatus as that of an accomplice. This is the precise language of the law, and this, and this alone, is the governing principle of the law. Yet, in view of the cases hereinafter to be reviewed, it will be found that occasionally, a court losing sight of this paramount and all-controlling consideration, — namely, the conduct of the witness in relation to the crime, has wandered widely from the true test, and, in accordance with faulty definitions of its own making, has determined upon entirely false premises whether a witness is or is not an accomplice. The commonest of these errors may thus be expressed. The law declares that all persons concerned in the commission of a crime, whether they directly commit it, or aid and abet in its commission, or advise and encourage its commission, are principals. They are, of course, accomplices. Therefore an accomplice is one who may be indicted for the same crime as that charged against the person on trial, and therefore if he cannot be charged with the same crime he is not an accomplice. Here is epitomized the reasoning of such cases as State v. Durnam,
It is, of course, no argument to say that where the law has denounced as separate crimes the separate acts of the parties as bribe giving and bribe taking, to hold the parties to be accomplices would make them principals in one crime and accomplices in another "at the same time and through the same overt act." This is a frequent occurrence in and condition of the law. The law may and oft does go further and make different offenses with different punishments of the same act. The prosecution may be had for any of the crimes embraced within the acts committed. But the law exacts only a single punishment, and upon conviction or acquittal for the given acts the defendant may successfully plead autrefois convict or autrefois acquit against another prosecution for the same acts under a different section of the code. Indeed, this condition of the law is expressly recognized in section
While our law generally does not seek to admeasure the degrees of guilt between principals, accessories, and accomplices, it is quite competent for it to do so, and in the past it has been quite common for it to do so. If A instigates B, C, D, and E to join in the commission of a murder, B furnishing the weapon, C transporting D and E to the scene of the crime, D holding the victim while E inflicts the fatal blow, the law might admeasure their degrees of criminality, define their offenses separately and punish them accordingly. If it did not do so all, under our code, would be accomplices and principals alike in the crime of murder. Would they be any the less accomplices, would they any the less have instigated, aided, abetted, and committed the crime because the law should happen to mete out different punishments for their separate acts of participation, as it actually did at common law?
Nor yet does it follow, because the particular act of participation of an accessory or accomplice in a crime has been denounced by our law as a separate crime, that he cannot therefore be indicted as a principal. If the law made manifest its intent that he should not be so indicted as a principal, it would be but an exception to the general provision of section
By a few courts which have regarded the effort to induce a witness to commit perjury as the essence of the crime of subornation, disregarding as negligible the success of the effort resulting in a corrupt agreement and in the commission of the perjury itself, it is held that in a charge of subornation the perjurer is not an accomplice with the suborner. The case most often cited and here relied upon by respondent is that of Stone
v. State,
"Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. Rex v.Cooper, 5 C. P. 535; Foster's Crown Law, 125, 2 Hawk. c. 29, secs. 1, 10; Earl of Somerset's Case, cited in 19 Howell's State Trials, 804. And the accessory is a felon, though his felony is different in kind from that of the principal. Foster's Crown Law, 343. So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. 1 Russell on Crimes, 32.
"We cannot see that the application of these principles is changed, when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted. But whether the crime is made the subject of separate prosecution and punishment or is to be *446 included in an indictment with the principal offense will not, in the opinion of the court, change the definition of it, or alter the facts or circumstances in which the commission of it consists. The same facts to be averred and proved in the same way, will substantiate the crime in one case as in the other. . . . The crime of subornation of perjury would consist in procuring perjury to be committed, directly or indirectly, as much after subornation was made a felony as before."
To the same effect is the case of State v. Fahey, 3 Pennew. (Del.) 594, [54 A. 690], and in State v. Renswick,
Wherever the commission of a crime involves the co-operation of two or more people, the guilt of each will be determined by the nature of that co-operation. Whenever the co-operation of the parties is a corrupt co-operation, then always those agents are accomplices, even as at common law they were principals. To the crime of seduction two parties are necessary, but the co-operation of the seduced is not criminal. She is a victim and she is not therefore an accomplice of the seducer. In such lesser offenses as laws denouncing the sale of lottery tickets or thesale of liquor, while two are necessary to the transaction and to the commission of the crime, the law denounces only the selling
and reasons that the purchaser's act is entirely innocent and he will not be regarded as an accomplice. In cases of abortion, where the law denounces the commission of an abortion, some cases hold that the consenting pregnant woman is not an accomplice. These decisions doubtless arise in part out of a tenderness for the sex and a consideration of the extreme temptations by which a woman so situated may be beset. Under our law a woman may or may not be an accomplice, depending upon her part in the transaction. Thus she may consent to the taking of the drugs, or the performance of the operation in ignorance of the intended purpose. She may, indeed, be coerced into submission, in neither of which *447
cases would she be an accomplice. But if a woman voluntarily solicits the performance of such an operation upon herself and to that extent induces it, it is impossible to see how she can fail to have been an instigator and encourager of the crime, and so an accomplice. Such is the ruling of the Ohio supreme court in State
v. McCoy,
In adultery and fornication, where the willing consent of the woman is proven or assumed, the courts have found no difficulty in declaring her to be an accomplice with the man. For there, differing from abortion, no considerations of the temptation of the woman's hard lot operate to soften the courts' views. They are accomplices the one with the other because their conduct is corrupt and each has mutually aided the other in the commission of a crime to which the corrupt participation of the two is necessary. (State v. Scott,
Bribery at common law as defined by Bishop (1 Bishop, New Crim. Law, 85) was "the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done." It is the uniform rule of decision, not only of the common law but of every state of the United States, with one exception hereinafter to be considered, that the giver and the receiver of the bribe are principals in the crime, and so necessarily accomplices of each other. The giving and the receiving are reciprocal. (Rex v. Vaughan, 4 Burr, 2494; Regina v. Boyes, 1 Best Smith, 311.) In the Vaughan case, says Lord Mansfield: "Wherever it is a crime to take it is a crime to give." Various states have in various ways denounced as crimes certain phases, elements, and transactions going to the crime of bribery, but stopping short of its completion. Thus, in some states thesoliciting of a bribe *448 without its payment is a crime. (Pen. Code, sec. 93.) In others it is not. In some states the offer to pay a bribe without regard to its acceptance is a crime. (Pen. Code, sec. 93.) In others it is not. Manifestly in the crimes last mentioned, since the denounced act in no wise depends upon a plurality of agents, in no wise rests upon the corrupt assent, agreement, or procurement of another, the person approached is not an accomplice of the approacher. But whenever a crime necessarily embraces the corrupt, guilty, criminal co-operation of two or more persons, those persons always have been and must be accomplices.
This, then, is the true test and rule: If in any crime the participation of an individual has been criminally corrupt he is an accomplice. If it has not been criminally corrupt he is not an accomplice. In those cases where the concurrent act or co-operation of two people is necessary, as in seduction, sometimes in abortion, and in the minor offenses of selling liquor, lottery tickets or harmful drugs, the relationship of accomplice does not exist because the co-operation of the other party is not denounced by the law as criminally corrupt, and, as matter of fact, need not be criminally corrupt. Upon the other hand, where the act requires the co-operation of two persons, and their co-operation is criminally corrupt, the relationship of accomplice is at once established, as in adultery and fornication, in duelling, in agreeing to fight a duel, in illegal rebating (United States v. New York Central etc. R.R. Co., 146 Fed. 298), in bribery, and in all forms of criminal agreement, where the agreement itself constitutes the crime. Conspiracies are typical instances of agreements in and of themselves constituting crimes. All the conspirators are principals and, of course, accomplices.
In the charge against this defendant of "agreeing to receive a bribe" and "receiving a bribe," each element, the agreeing and the receiving, necessarily contemplates the criminally corrupt co-operation of another (eliminating from consideration, of course, the feigned accomplice). To this proposition the authorities are so numerous and so uniform that one is rather embarrassed by the wealth than by the dearth of them. But on the question of accomplices in bribery alone, as sustaining this principle, either tacitly or with discussion, may be cited Newman
v. People,
There is but one court, as has been intimated, which has advanced a view on this subject contrary to all other authorities and decisions. That is the supreme court of Minnesota, in the case of State v. Durnam,
The charge against this defendant, as we have seen, is under section
With the law thus before us we are in a position to consider the rulings of the trial court.
The court gave the following instruction: "Where two or more persons are concerned in the commission of a crime, whether they or either of them directly commit the act constituting the offense, or aid and abet in the commission, or not being present have advised and encouraged in its commission, each one of them is an accomplice with the other in any crime so committed, and the final test of the question as applied to a witness in any case is, could such witness lawfully be indicted with the defendant for the offense on trial? If so, he is an accomplice within the meaning of the law. If not, he is not, and the man who gives or offers a bribe is not for that reason an accomplice of the one who receives or agrees to receive a bribe." The opening sentence of this instruction defines an accomplice in just terms. But when it proceeds to say that the final test as applied to a witness in any case is "could such witness lawfully be indicted with the defendant for the offense on trial," the court adopted the fallacious reasoning of the Durnam case, (
It thus being established that Gallagher was clearly an accomplice, the equally important question remains whether or not his testimony was corroborated. If it be corroborated, up to the requirements of the law, it might be argued that, notwithstanding the erroneous instruction above quoted, the jury determined that he was an accomplice, but rendered its verdict because of the corroborating evidence. Upon this it is declared by respondent that, treating Gallagher as an accomplice, *452
his evidence was sufficiently corroborated. The corroboration of an accomplice's testimony, as has been said, may be slight.(People v. Melvane,
It follows herefrom that the testimony of Gallagher is corroborated in no respect required by the law, and for the reasons given the judgment and orders appealed from are reversed and the cause is remanded.
Shaw, J., Melvin, J., Lorigan, J., Sloss, J., and Beatty, C.J., concurred.