p. 467claimed, defendant counseled never took place, the taking being by the district attorney solely by his personal purposes and not as an accomplice. Held, that defendant was not a principal, within Penal Code, section 29, in removing or stealing the indictments, as the act of the district attorney cannot be imputed to the defendant.
2. Same—Solicitation op Another.
Proof of the solicitation by defendant of another, a detective, to remove indictments from the office of the clerk and to steal them would be sufficient to sustain the verdict under section 34, Penal Code, and with such evidence in the case defendant might properly be convicted of the crime and a certificate of reasonable doubt refused.
Application for a. certificate of reasonable doubt.
William Travers Jerome, District Attorney (Robert O. Taylor, Assistant District Attorney, of counsel), for People.
John R. Dos Passos, John T. Little and Howe & Hummel, for defendant Mills.
Mills, the defendant, was accused by an indictment framed under sections- 34, 94 and 531 of the Penal Code, and which contained two counts : First. Of the crime of an attempt to commit the crime of wilfully and unlawfully removing . . . records . . . deposited in a public office . . . Second. Of the crime of an attempt to commit the crime of grand larceny in the second degree-committed by the felonious attempt to- steal six indictments. Section 34 reads: “ An act, done with intent to- commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” It is contended that the evidence warranted a conclusion that the crimes charged as having been attempted were committed, and that a conviction upon an accusation of an attempt to commit the crime was, therefore, warranted under section 685 of the Penal Code, and this contention rests upon a claim that defendant, through counseling the removing and the taking of the indictments, became a prin
p. 468cipal by virtue of section 29 of the Penal Code, which reads as follows: “ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.” It seems that whatever was done in the way of removing or taking was not done under the counsel or inducement of the defendant, but by the district attorney, who was prompted to do the removing by his desire tó use the papers for entrapping purposes and between whom and the defendant there was a want of community of motive. The taking which it is claimed defendant counseled never took place; the taking which did take place was by the district attorney, was solely for his personal purposes and independent of any counsel or inducement on the part of the defendant, and in taking the indictments the district attorney was not an accomplice. As there was nothing in common between the motives of the district attorney and those of the defendant, the act of the district attorney was not imputable to defendant. The claim that defendant was a principal in a removing and stealing of the indictments is, therefore, untenable. But there was evidence from which the jury may have justly inferred that the detective, Brindley, was solicited by the defendant to remove the indictments from the office of the clerk and to steal them, and this was sufficient to sustain the verdict, for a mere solicitation to commit a crime with, intent to commit the crime is “ an act done with intent to commit a crime, and tending ... to effect its commission,” within the meaning of these words as used in section 34 of the Code (King v. Higgins, 2 East, 5, 1 Russ. on. Cr. 196 [ed. of 1896], 4 Hill, 135 ), and even though the words used by the defendant did not amount to a solicitation, I believe that they constituted such an act as is referred to in section 34. I have given due consideration to all the questions referred to
p. 469in the briefs presented in behalf of the applicant and am unable to say that in my opinion there is reasonable doubt whether the judgment should stand, and will, therefore, deny the application for a certificate.
Application denied.