# People v. Buffum

> California Supreme Court · April 20, 1953 · 40 Cal. 2d 709

URL: https://www.frixlaw.com/law-library/cases/9546582

## Case

- **Full name:** The PEOPLE, Respondent, v. ROY L. BUFFUM Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** April 20, 1953
- **Citations:** 40 Cal. 2d 709; 256 P.2d 317; 1953 Cal. LEXIS 229
- **Precedential status:** Published
- **Opinion:** Concurrence by Schauer
- **Judges:** Gibson, Spence, Schauer, Shenk
- **Cited by:** 157 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Morante, 84 Cal. Rptr. 2d 665 (1999).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546582

## Opinion text

SCHAUER, J.
I concur in the judgment and in the opinion of Chief Jnstiee Gibson insofar as it holds that the convictions may not be supported on a showing that defendants conspired in California to perform abortions in Mexico, that the trial court erred in admitting proof of the law of Mexico on abortions, that it erred in failing to give the several instructions, or the substance thereof, as requested by defendants, in particular that the court erred in failing to instruct upon the necessity for corroboration whether such instruction was or was not requested, and that the errors require a reversal of the judgment.
I do not agree with, or concur in, any of those portions of the opinion which conclude, or which assertedly lead to the conclusion, that the four women who solicited the performance of abortions upon themselves, and upon which solicitations the claimed abortions were assertedly performed, are not accomplices, within the meaning of section 1111 of the Penal Code, of the persons who assertedly acted on their solicitations, or conspired with them for the alleged objectives, and I do not agree that the testimony of any of such accomplices is competent to corroborate the testimony of any other accomplice or that the competent evidence is sufficient to support a conviction upon the theory that defendants conspired to perform abortions in California.
The portions of the opinion relating to the matter of accomplices and to the law requiring corroboration of accomplices, impress me as evidencing a carefully studied but strained attempt to avoid expressly overruling, and at the same time to avoid so far as possible without completely overruling, the mischief of the eases of People v. Clapp (1944), 24 Cal.2d 835 [ 151 P.2d 237 ], and People v. Wilson (1944), 25 Cal.2d 341 [ 153 P.2d 720 ]. The effect of those cases, so far as they are given any effect, is to overturn the age-old rule of the common law and to repeal pro tamto the pertinent statutes of California, requiring corroboration of the testimony of the criminal who seeks to pin guilt upon another (and thereby to reap some personal reward) by testimony that such other person acceded to the request of the witness and joined him or her in committing a crime which was initiated and solicited by the witness.
*729 I had thought that the Clapp and Wilson cases had been substantially overruled, albeit not avowedly, by People v. Lima (1944), 25 Cal.2d 573, 579 [ 154 P.2d 698 ]; People v. Harper (1945), 25 Cal.2d 862, 877 [ 156 P.2d 249 ]; and People v. Wallin (1948), 32 Cal.2d 803, 808 [ 197 P.2d 734 ], Certainly the three latter cases are substantially inconsistent with the former. In one of the three, People v. Harper, the court refused to apply the doctrine where its application would have necessitated acquittal of a convicted murderer; in the other two eases the doctrine was so limited by the ‘ ‘ distinguishing ’ ’ process as to reduce it substantially to the plane of so-called oriental justice, according to which, it is said, the merits of the individual case alone determine the result. Part of the reasoning in the instant ease is inconsistent with the Clapp and Wilson cases and that part is also inconsistent with that portion of the majority opinion in this same case which apparently again gives some effect to the Clapp doctrine. Such, I fear, will ever be our bemusement until the Clapp doctrine—however attractive it may have originally appeared —is finally abandoned.
It is said in this case that “A different problem [from that presented by section 1111 of the Penal Code], however, is presented by section 1108 of the Penal Code, which . . . provides that upon ‘a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, ’ the testimony of the woman upon whom the offense was committed must be corroborated. While it is true that this section does not specifically refer to a conspiracy to procure an abortion, the language is very broad and, in our opinion, should be construed to embrace the crime charged in the present indictment. It is apparent that the purpose of the Legislature was to provide a safeguard against the danger that the testimony of the woman who submitted to and willingly participated in the abortion may be colored in expectation of immunity or may be otherwise untrustworthy. This purpose is just as applicable where the defendant is charged with conspiracy to commit an abortion as it is where he is charged with committing or attempting to commit an abortion, and it would be incongruous to interpret section 1108 as intended to deny the safeguard in one situation but grant it in the other. Moreover, such an interpretation would make it possible for the prosecution to circumvent the purpose of the section in many cases by the simple expedient of charging *730 the defendant with conspiracy rather than with the substantive offense itself.”
Except for the bald assertion that “A different problem . . . is presented by section 1108,” everything in the above quoted excerpt from the majority opinion is good law, good logic, and good sense, and I concur in it. And it is all as fully applicable in relation to sections 31 and 1111 of the Penal Code as it is to section 1108. Likewise such reasoning, and the sound principles therein stated, are wholly incompatible with the Clapp and Wilson cases. I think that the cause of justice, and of clarity in the law, would be better served by complete abandonment of the split doctrine of the last mentioned eases.
Carter, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546582. Public record. Not legal advice.