People v. Coffey

Defendant was indicted under section 165 of the Penal Code, and was charged as a supervisor with having “agreed to receive and receiving” a bribe of four thousand dollars from James L. Gallagher, Abraham Ruef, and Tirey L. Ford. It was alleged that the agreement to receive the bribe and the reception of the bribe were “with the willful, felonious, unlawful and corrupt intent” upon the part of Coffey that his official vote, opinion, judgment, and action should be influenced thereby in the matter of granting to the United Railroads of San Francisco a franchise for an overhead trolley system.

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, 72 Cal. 459 , [ 1 Am. St. Rep. 65 , 14 Pac. 196 ].) Whenever the facts themselves are in dispute, that is to say, whenever the question is whether the witness did or did not do certain things, which, admittedly, if he did do them, make him an accomplice, the jury’s finding, upon familiar principles, is not disturbed. But where the facts are not in dispute, where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. For the law declares in mandatory terms that “A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends 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.” (Pen. Code, sec. 1111.) Therefore, whenever upon appeal it is argued that the eon

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

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

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. 31.) The object of this was both to simplify criminal procedure and to do away with - the technicalities of the common law, which made the aider or abettor a principal in the second degree, and which forbade the accessory to be brought to trial until the principal had been convicted or outlawed, a rule that lived in modem times and did much mischief. (2 Stephen, History Criminal Law, 232.)

' Rejecting from the category of accomplices the accessory after the fact (People v. Collum, 122 Cal. 186 , [ 54 Pac. 589 ]), we may derive a satisfactory definition of an accomplice from the language of section 31 of the Penal Code above quoted. Accomplices, then, are “All persons concerned in the commission of a crime, 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.” Certainly, since the law has said that all such persons are so tainted with guilt that they may be indicted as principals, it cannot be denied that they are also accomplices. This definition, moreover, runs counter to no authority, since by all, every person of legal responsibility, who knowingly and volun

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 his status 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, 73 Minn. 150 , [ 75 N. W. 1127 ], and the fallacy of the reasoning must be obvious. One is an accomplice in a crime because of the part that he has taken in it, not because he may be indicted as a principal. The latter is a mere accidental circumstance, depending upon the language of the statute, and in no way affecting the true touchstone,—namely, the part which the witness has taken in the offense. The judicial declaration that, under a statute such as our section 31 of the Penal Code, all accomplices may be indicted as principals, is perfectly sound. But the attempted reasoning

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 654 of the Penal Code which declares that “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.” And as specific illustrations, subornation of perjury is declared a crime punishable by imprisonment in the state prison for not less than one nor more than fourteen years. (Pen. Code, secs. 126, 127.) A futile effort to induce a witness to commit perjury may be punished as an attempt under section 664 of the Penal Code, when upon conviction the defendant could be sentenced to state prison for a term not exceeding seven years. Yet by section 137 of the Penal Code the same attempt is declared to be a felony, and by section 18 of the code that felony could be punished only by a term of imprisonment not exceeding five years. Again, extortion under color of office contains all the elements of bribe taking, and the guilty official may be

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 B 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 bo 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 31. If it did not make manifest this intent, then the situation presented is that contemplated by section 654 of the Penal Code, where the act is made punishable in different ways by different provisions of the code. But in either case the accidental circumstances clearly do not affect the definition of an accomplice. One 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

By a few courts which liave 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, 118 Ga. 717 , [ 98 Am. St. Rep. 145 , 45 S. E. 630 ], That was a charge of subornation of perjury, the perjury having been committed. The testimony of the perjurer was received. It was contended that the perjurer was an accomplice. The supreme court of Georgia reasoned that while “in perjury and subornation of perjury the act of the two offenders is concurrent, parallel and closely related in point of time and conduct,” still there was “sufficient inherent difference between the two to warrant the law-making power in separating the act into its component parts and making that of the suborner a new and independent offense, punishable with greater or less severity than that inflicted on the perjurer.” Prom this the court reasoned that “the suborner is not, under our law, treated as the accessory of the perjurer.” This is “further evident from the fact that they are punished differently, while under the code accessories before the fact are punishable in the same way as principals.” The next step in the reasoning is sound. It is that “if not accessories the suborner and the perjurer are not accomplices.” And having determined to its satisfaction that the suborner and the perjurer were not accessories, the conclusion that they were not accomplices followed irresistibly. The court would have made a more plausible presentation if it had reasoned solely from the proposition that the one substantive element of subornation is the effort and attempt to procure perjury, and that the success or non-success of the effort is a negligible quantity, and that it was thus like the crime of soliciting a bribe or the

“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 Bussell 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

To the same effect is the case of State v. Fahey, 3 Pennew. (Del.) 594, [ 54 Atl. 690 ], and in State v. Renswick, 85 Minn. 19 , [ 88 N. W. 22 ], the supreme court of Minnesota which, as we shall see, is the only court that announces the extreme view that the briber and bribed are not accomplices, declares that in a trial for subornation of perjury the mere attempt to suborn testified to by the witness does not make him an accomplice, but if the subornation itself' is sought to be established by the testimony of the perjurer the latter is an accomplice and his evidence must be corroborated.

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 the sale 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 womán 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

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, 28 Or. 331 , [ 42 Pac. 1 ]; Merritt v. State, 12 Tex. App. 203 ; Townser v. State, 58 Tex. Crim. 453 , [ 137 Am. St. Rep. 976 , 126 S. W. 572 ].)

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 bnt 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 á 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 the soliciting of a bribe

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 otiier 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, 23 Colo. 300 , [ 47 Pac. 278 ]; People v.

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, 73 Minn. 150 , [ 75 N. W. 1127 ]. In that case the defendant was indicted and convicted of the crime of “asking” for a bribe, the crime contemplated in our state by such sections as Penal Code, 93 and 94. He had solicited the bribe from Richards and Halvorson, witnesses in the case. The defendant’s demands were not acceded to; the bribe money was not paid. Upon appeal it was contended that Richards and Halvorson were accomplices. The attorney-general in his brief made the argument that follows: “As to defendant’s contention that Richards was an accomplice, it seems to us that, if a person from whom a bribe is asked is an accomplice when he refuses to give it, then a person who is held up on the street at night by a highwayman is an accomplice. In both cases the person robbed and the person solicited furnish subjects upon which the crime could be committed, but that does not make them accomplices. In order to be an accomplice a person must be a criminal. He must do a criminal act with a criminal intent, and the person who is merely asked for a bribe may refuse it and be perfectly

The charge against this defendant, as we have seen, is under section 165 of the Penal Code. It is not for asking or soliciting a bribe. It is for “agreeing” to receive and “receiving” a bribe. The agreement necessarily carries with it the essential concept of a criminal and corrupt bargain. There can be no agreement without a meeting of minds, and a meeting of minds for this base bargain is declared to be a crime. There is nothing in the law to suggest even that in such a crime the two parties stand in any different position from that occupied by two who agree to fight a duel. In such an agreement the act of the person who contracts to pay the consideration is admittedly base, corrupt, and criminal. Moreover, his conduct is essential to the very existence of the crime of agreeing. How then shall it be said that he is not, within the narrowest or the fullest meaning of the law, an accomplice of the man agreeing to take the bribe? He is an actual participant in the crime, as well as an aider, abettor, adviser, and encourager in its commission, for it is to be remembered that in the case at bar the, crime itself is the agreement. An officer may solicit bribes, may ask for bribes, may advertise his willingness to accept bribes. Bach one of these acts is a separate, distinct, and recognized crime, but no one of them is the crime of agreeing to take a bribe, which ex vi termini requires the guilty co-operation of another. (United States v. Deitrich,

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 1 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 appplied to a witness in any ease 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, ( 73 Minn. 150 , [ 75 N. W. 1127 ]), and fell into error—an error which was repeated in the closing sentence with, “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.” For, as Lord Mansfield said, “Wherever it is a crime to take it is a crime to give.” These crimes are reciprocal and mutually interdependent. The same is. true of an agreement to receive a bribe.

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,

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.