PEOPLE v. BOTKIN.

SUPREME Court of CALIFORNIA. 1901.

[Reported 132 Cal. 231.]

GAROUTTE, J. Defendant has been convicted of the crime of murder, and prosecutes this appeal. The charge of the court given to the jury upon the law contained declarations which were held to be unsound in People v. Verneseneckockockhoff, 129 Cal. 497. In view of the decision in that case, the attorney-general concedes that the judgment should be reversed and the cause remanded to the trial court for further proceedings. But defendant claims that she is not triable at all by the courts of this state, and this contention should now be passed upon. For if maintainable a second trial becomes a useless expenditure of money, time, and labor, and necessarily should not be had.

For the purposes of testing the claim of lack of jurisdiction in the courts of California to try defendant, the facts of this case may be deemed as follows: Defendant, in the city and county of San Francisco, state of California, sent by the United States mail to Elizabeth Dunning, of Dover, Delaware, a box of poisoned candy, with intent that said Elizabeth Dunning should eat of the candy and her death be caused thereby. The candy was received by the party to whom addressed, she partook thereof, and her death was the result. Upon these facts may the defendant be charged and tried for the crime of murder in the courts of the state of California? We do not find it necessary to declare what the true rule may be at common law upon this state of facts, for, in our opinion, the statute of this state is broad enough to cover a case of the kind here disclosed. There can be no question but that the legislature of this state had the power to declare that the acts here pictured constitute the crime of murder in this state, and we now hold that the legislative body has made that declaration. Section 27 of the Penal Code reads as follows:

"The following persons are liable to punishment under the laws of this state:

"1. All persons who commit, in whole or in part, any crime within this state;

"2. All who commit larceny or robbery out of this state, and bring to, or are found with the property stolen, in this state;

"3. All who, being out of this state, cause or aid, advise or encourage, another person to commit a crime within this state, and are afterwards found therein."

Subdivision 1 covers the facts of this case. The acts of defendant constituted murder, and a part of those acts were done by her in this state. Preparing and sending the poisoned candy to Elizabeth Dunning, coupled with a murderous intent, constituted an attempt to

commit murder, and defendant could have been prosecuted in this state for that crime, if, for any reason, the candy had failed to fulfill its deadly mission. That being so, those acts being sufficient, standing alone, to constitute a crime, and those acts resulting in the death of the person sought to be killed, nothing is plainer than that the crime of murder was in part committed within this state. The murder being committed in part in this state, the section of the law quoted declares that persons committing murder under those circumstances are liable to punishment under the laws of this state." The language quoted can have but one meaning, and that is: a person committing a murder in part in this state is punishable under the laws of this state, the same as though the murder was wholly committed in this state.

66

Counsel for defendant insist that this section contemplates only offences committed by persons who, at the time, are without the state. This construction is not sound. For as to subdivision 1, it is not at all plain that a person without the state could commit, in whole, a crime within the state. Again, if the crime in whole is committed within the state by a person without the state, such a person could not be punished under the laws of this state, for the state has not possession of his body, and there appears to be no law by which it may secure that possession. Indeed, all of the subdivisions of the section necessarily contemplate a case where the person is, or comes, within the state. If the framers of the section had intended by subdivision 1 to cover the case of persons only who were without the state when the acts were committed which constitute the crime, they would have inserted in the section the contingency found in the remaining subdivisions, which subdivisions contemplate a return to the state of the person committing the crime. It is plain that the section by its various provisions was intended to embrace all persons punishable under the laws of the state of California. The defendant, having committed a murder in part in the state of California, is punishable under the laws of the state, exactly in the same way, in the same courts, and under the same procedure, as if the crime was committed entirely within the state.

For the foregoing reasons the judgment and orders are reversed and the cause remanded.

CHAPTER III.

THE OFFENCE: MODIFYING CIRCUMSTANCES.

SECTION I.

Participation of a Public Officer.

REX v. MARTIN.

CROWN CASE RESERVED. 1811.

[Reported Russell & Ryan, 196.]

THE defendant was tried before Mr. BARON WOOD, at the Lent assizes, for Northamptonshire, in the year 1811, upon an indictment for a misdemeanor in unlawfully aiding and assisting Antoine Mallet, a prisoner at war detained within certain limits at Northampton, to escape and go at large out of the said limits, and conducting him and bringing him to Preston Turnpike Gate, at Northampton, with intent to enable and assist him to escape and go at large out of this kingdom to parts beyond the seas.

The case appeared to be this.

The defendant lived at Wantage, in Berkshire; she came to Newport Pagnell, and there hired a post-chaise to take her to Northampton, and back. The post-boy drove her to Northampton, where she got out, and the post-boy went to his usual inn, with orders to return to the place where he set her down, after he had baited and rested his horses. The post-boy in about an hour returned, took the defendant up again in Northampton, and proceeded towards Newport, and when they had just got without the town (and within the limits allowed to the prisoners of war, being one mile from the extremity of the town), she called to the post-boy to stop and take up a friend of hers that was walking along the road. The post-boy stopped, and Mallet got in, and they proceeded together to Preston Turnpike Gate (which is without the aforesaid limits), in the road to Newport, when they were both stopped and apprehended by the commissary, or agent for French prisoners and his assistant who had watched them.

It appeared in evidence that there was no real escape on the part of Mallet, but that he was employed by the agent for French prisoners, under the direction of the Transport Board to detect the defendant, who was supposed to have been instrumental in the escape of many French prisoners from Northampton, and that all the acts done by Mallet, the contract for the money to be paid to the defendant, and the place to which they were to go, before they would be stopped, were previously concerted between the agent for the prisoners and Mallet, and Mallet had no intention to go away or escape.

It was objected to by the counsel for the defendant that the commissary, having given license to Mallet to go to the place he did go to, had enlarged the limits of his parole to that place, and therefore Mallet could not be said to have escaped, nor could the defendant be said to have assisted him in escaping out of the limits of his parole.

The learned judge proceeded in the trial, and the defendant was convicted, but he respited the judgment and reserved the point for the consideration of the judges.

In Trinity term, 15th June, 1811, all the judges met (except LawRENCE, J.,) when they held the conviction wrong, inasmuch as the prisoner never escaped or intended to escape.

GRIMM v. UNITED STATES.

SUPREME COURT OF THE UNITED STATES. 1895.

[Reported 156 U. S. 604.]

INDICTMENT under Rev. St. § 3893 for mailing obscene pictures.1 BREWER, J. .. A final matter complained of grows out of these facts: It appears that the letters to defendant. the one signed "Herman Huntress," described in the second count, and one signed "William W. Waters," described in the fourth count were written by Robert W. McAfee; that there were no such persons as Huntress and Waters; that McAfee was and had been for years a post-office inspector in the employ of the United States, and at the same time an agent of the Western Society for the Suppression of Vice; that for some reasons not disclosed by the evidence McAfee suspected that defendant was engaged in the business of dealing in obscene pictures, and took this method of securing evidence thereof; that after receiving the letters written by defendant, he, in the name of Huntress and Waters, wrote for a supply of the pictures, and received from defendant packages of pictures which were conceded to be obscene. Upon these facts it is insisted that the conviction cannot be sustained because the letters of defendant were deposited in the mails at the instance of the government, and through the solicitation of one of its officers; that they were directed and mailed to fictitious persons; that no intent can be imputed to defendant to convey information to other than the persons named in the letters sent by him, and that as they were fictitious persons there could in law be no intent to give information to any one. This objection was properly overruled by the trial court. There has been much discussion as to the relations of detectives to crime, and counsel for defendant relies upon the cases of United States v. Whittier, 5 Dillon, 35; United States v. Matthews, 35 Fed. Rep. 890; United States v. Adams, 59 Fed. Rep. 674; Saunders v. People, 38 Michigan,

1 The statement of facts and part of the opinion, dealing with the sufficiency of the indictment, are omitted. — ED.

218, in support of the contention that no conviction can be sustained under the facts in this case.

It is unnecessary to review these cases, and it is enough to say that we do not think they warrant the contention of counsel. It does not appear that it was the purpose of the post-office inspector to induce of solicit the commission of a crime, but it was to ascertain whether the defendant was engaged in an unlawful business. The mere facts that the letters were written under an assumed name, and that he was a government official a detective, he may be called - do not of themselves constitute a defence to the crime actually committed. The official, suspecting that the defendant was engaged in a business offensive to good morals, sought information directly from him, and the defendant responding thereto, violated a law of the United States by using the mails to convey such information, and he cannot plead in defence that he would not have violated the law if inquiry had not been made of him by such government official. The authorities in support of this proposition are many and well considered. Among others reference may be made to the cases of Bates v. United States, 10 Fed. Rep. 92, and the authorities collected in a note of Mr. Wharton, on page 97; United States v. Moore, 19 Fed. Rep. 30, United States v. Wight, 38 Fed. Rep. 106, in which the opinion was delivered by Mr. Justice Brown, then District Judge, and concurred in by Mr. Justice Jackson, then Circuit Judge; United States v. Dorsey, 40 Fed. Rep. 752; Commonwealth v. Baker, 155 Mass. 287, in which the court held that one who goes to a house alleged to be kept for illegal gaming, and engages in such gaming himself for the express purpose of appearing as a witness for the government against the proprietor, is not an accomplice, and the case is not subject to the rule that no conviction should be had on the uncorroborated testimony of an accomplice; People v. Noelke, 94 N. Y. 137, in which the same doctrine was laid down as to the purchaser of a lottery ticket, who purchased for the purpose of detecting and punishing the vendor; State v. Jansen, 22 Kansas, 498, in which the court, citing several authorities, discusses at some length the question as to the extent to which participation by a detective affects the liability of a defendant for a crime committed by the two jointly; State v. Stickney, 53 Kansas, 308. But it is unnecessary to multiply authorities. The law was actually violated by the defendant; he placed letters in the postoffice which conveyed information as to where obscene matter could be obtained, and he placed them there with a view of giving such information to the person who should actually receive those letters, no matter what his name; and the fact that the person who wrote under these assumed names and received his letters was a government detective in no manner detracts from his guilt.

These are all the questions presented by counsel. We see no error in the rulings of the trial court, and the judgment is, therefore, Affirmed.