People v. Buffum

SHENK, J.

I dissent.

The evidence is amply sufficient to support the conviction of the defendants. They were charged by indictment with “conspiracy to violate section 274, Penal Code of the State of California”—the abortion statute. The defendant Buffum was charged with four overt acts committed in Los Angeles County. The defendant Rankin was charged with one overt act committed in Los Angeles County and four in Mexico where the abortions were consummated. These overt acts were established by competent credible evidence and the defendants did not take the stand to refute them or explain away their obvious implications of guilt.

The defendants make two major contentions. First, that the trial court committed prejudicial error in failing to instruct on the necessity of corroboration of the testimony of the women upon whom the surgery was performed. If the prosecution had been for abortions committed in violation of section 274 they would not have been accomplices under the law of this state. Assuming that they were accomplices in this charge of conspiracy under section 182 of the Penal Code, their testimony was corroborated by the statements of defendant Buffum himself and no prejudice, in my opinion, resulted from the failure to instruct on the requirement of corroboration. The defendant Buffum stated to an arresting officer that the surgery was initially intended to be committed “down that way” and that he did not understand that they were to be taken to Mexico, until the trip was completed.

*731 Second, the defendants contend that they cannot be prosecuted in California for the commission of a crime in Mexico and that the admission of evidence to show that the Mexican abortion law is the same as the law of California was prejudicial. This contention calls for the application of section 778a of the Penal Code which provides: “Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of such intent, which culminates in the commission of a crime, either within or without this state such person is punishable for such crime in this state in the same manner as if the same had been committed entirely within this state.”

The code commissioner’s note correctly states the purpose of this section as follows: ‘ ‘ The section is designed to provide for the punishment of persons who in this state do an act culminating in the commission of a crime in another [or outside of this] state.” The performance of the abortions in Mexico is not questioned. I see no justification for the holding that the acts done in this state, as provided in section 778a, must constitute an attempt to commit the crime in this state. Such a construction makes that section entirely ineffective unless the substantive crime of attempt covered by section 664 of the Penal Code is proved to have been committed within this state. The language of section 778a is not so limited and it should be applied to the facts in this case. The acts done as contemplated by that section were alleged in the indictment and proved. Those acts were followed by the culmination of the commission of the crimes outside of the state. The question of the improper admission of evidence of Mexican law on the subject therefore becomes immaterial in this case. I would affirm the judgments.

Respondent’s petition for a rehearing was denied May 14, 1953. Shenk, J., and Schauer, J., were of the opinion that the petition should be granted.