230 P. 20 | Cal. Ct. App. | 1924
The defendant was tried and convicted upon an information charging him with the crime of unlawfully having in his possession, selling, furnishing, pedling, etc., a preparation of morphine, contrary to the provisions of the act of March 6, 1907, and the amendments thereto. From the order of the court denying his motion for a new trial and the judgment entered upon the verdict of guilty, the defendant appeals to this court. Only one point is stressed by the appellant in support of his contention that the judgment and order herein referred to should be reversed. It is that the trial court erred in failing to instruct the jury on the law concerning the testimony of accomplices and the necessity for the testimony of an accomplice to be corroborated. The instructions which were proposed by the defendant covering these points are indorsed by the trial judge as "refused, substance given elsewhere." We have carefully read the instructions and fail to find any instructions covering the points mentioned. The instructions were all asked in relation to the testimony of the witness G. B. McDonald. This testimony, however, is set out in the transcript and, also, in appellant's brief and shows that the witness McDonald was simply a purchaser. His part in the transaction is testified to as follows: "Q. Now, on the date, his last date in February, 1924, did you purchase anything *684 from the defendant on that date? A. I did. Q. And what was it? A. Morphine. Q. Do you recall what time of day? A. Well, it was around about between 4 and 5 o'clock. . . . Q. And whom did you get that morphine from? A. The defendant. Q. And did he give it to you or did you purchase it from him? A. Purchased it. Q. What did you pay him for it? A. Between three and four dollars, I forget just which. Cross-examination by Martin I. Welsh: Q. You knew, of course, when you bought this morphine from the defendant that it was illegal to do that, didn't you? A. I did."
[1] Upon this testimony it is contended that the witness McDonald was an accomplice within the terms of section
"It is insisted, however, that the statute which provides that 'every person who shall assist, abet, counsel, cause, hire or command another to commit any offense, may be prosecuted and punished as if he were the principal offender,' governs this case; it being contended that the person who purchases the liquor, induces the seller to commit the crime of selling it, and so aids and abets him in the commission of the offense.
"But we are satisfied that the purchaser is not an abettor of the offense within the meaning of the statute. The 'abetting' intended by it is a positive act in aid of the commission of the offense — a force, physical or moral, joined with that of the perpetrator in producing it. This is clear from the context, where abetting is classed with 'assisting,' 'causing,' 'hiring,' and 'commanding.' The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal — approach it from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His approach to the crime is from the other side; he touches it at wholly another point. It is somewhat like the case of a man who provokes or challenges another to fight with him. If the other knocks him down, he has induced, but in no proper sense abetted, this act of violence. He has not contributed any force to its production. He touches the offense wholly on the other side. The purchaser of liquor, by his offer to buy, induces the seller of the liquor to make the sale; but he can not be said to 'assist' him in it. The whole force, moral or physical, that went to the production of the crime as such, was the seller's."
[2] Under the authorities just cited and the amendment to section
Hart, J., and Finch, P. J., concurred.