People v. Buffum

SPENCE, J.

I reluctantly concur in the main conclusions of the Chief Justice, and in the reasoning given in support of those conclusions.

My reluctance stems from the fact that the evidence stands practically uncontradicted, and such evidence points unerringly to the existence of a plan entered into by defendants to commit abortions. Assuming the existence of this plan, the *727 evidence further shows numerous overt acts of defendants done in California in furtherance of the plan. It is not at all clear, however, that this plan contemplated the commission of any abortion in California. It is difficult to escape the logic of the Chief Justice’s reasoning that under the present state of the law the conspiracy to ‘1 commit any crime, ’ ’ contained in Penal Code, section 182, is confined to a conspiracy to commit a crime in California. The indictment herein was drawn upon that theory as it charged a conspiracy to violate section 274 of the Penal Code, but the trial was . conducted upon the assumption that defendants had conspired to commit a crime in Mexico. I therefore concur in the view that the trial court committed prejudicial error in admitting evidence relating to the laws of Mexico and in refusing defendants’ requested instructions relating to the inapplicability of such laws to the charge set forth in the indictment.

With respect to the question of the necessity for instructions on the requirement of corroboration, I agree in general with the views expressed by the Chief Justice. The claimed errors are based on the trial court’s refusal to give requested instructions under Penal Code, section 1111, and its failure to instruct on its own motion under section 1108 of that code. If these claimed errors stood alone, I do not believe that they should be held to be prejudicial. The four women upon whom the abortions were committed were not accomplices. Therefore, the testimony of each could be used to corroborate the testimony of the mother and of each of the other women. (People v. Wilson, 25 Cal.2d 341, 346 [ 153 P.2d 720 ] ; People v. Kendall, 111 Cal.App.2d 204, 210 [ 244 P.2d 418 ] ; People v. Malone, 82 Cal.App.2d 54, 63 [ 385 P.2d 870 ] ; People v. Collins, 80 Cal.App.2d 526, 534 [ 182 P.2d 585 ].) Furthermore, there was abundant evidence, apart from that given by the mother and the four women, which corroborated their testimony. As the evidence clearly indicated a plan by defendants to commit abortions either in Mexico or California, there is little likelihood that the jury would have reached a different result in the event that the trial court had given full and correct instructions on corroboration.

However, as the error in admitting the evidence of Mexican law and in refusing to give the proposed instructions on its inapplicability was prejudicial, I feel compelled to join in *728 the reversal of the judgments and the order denying the motions for new trial.