The opinion
SCHAUER, J.
I dissent. By the testimony of Mrs. Anderson she was not merely an innocent victim upon whom an abortion was attempted without her knowledge or consent; she was on the contrary an active participant, wilfully aiding and abetting in the project. Therefore she was guilty as a principal and as an accomplice of the defendant in violating section 274 of the Penal Code, if in fact any crime was proved, and not section 275. The latter section (275) is obviously designed primarily, if not exclusively, to cover situations not covered by the former. The latter section is intended to punish two things; (1) the solicitation and taking of drugs by a woman, on her own account and without the necessity for participation by any other person, “with intent thereby to procure a miscarriage”; (2) the passive submission, with like intent, to an operation. It does not cover active participation in the violation of section 274. That section (274), coupled with the provisions of sections 31 and 971 of the same code, covers the activities of both Mr. and Mrs. Anderson and the defendant. They are all accomplices and .all principals in a single crime.
*352 The experience and wisdom of mankind, particularly of those dealing with judicial trials, accumulated through many generations, have brought the conclusion that “evidence of an accomplice, coming from a tainted source, the witness being, first, an infamous man, from his own confession of guilt, and, second, a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man. ’ ’ (People v. Coffey (1911), 161 Cal. 433, 438 [ 119 P. 901 , 39 L.R.A.N.S. 704 ].) In recognition of this conclusion the Legislature of California has laid down the rule that “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Pen. Code, § 1111.)
The majority opinion here, as in People v. Clapp (1944), 24 Cal.2d 835 [ 151 P.2d 237 ], ascribes to section 275 a potency which I do not believe is justified by that section’s language or purpose. Such construction appears to me to subvert the clear meaning of sections 274, 31, and 971 of the Penal Code, and to accomplish the circumvention of the salutary provisions of section 1111. Such strained constructions benefit neither law nor justice. The Legislature gave further evidence of its concern that there be no convictions in abortion cases upon tainted evidence alone—which may be wholly false and given for ulterior purposes—by the enactment of section 1108 of the Penal Code. If that section and section 1111 were given effect in this case the judgment could not stand. Regardless of our feeling as to the likelihood of guilt of the defendant in this or any other particular case it is our duty to scrupulously uphold the law as enacted by the State.
For the reasons above stated and for the additional considerations depicted in my dissenting opinion in People v. Clapp (1944), supra, 24 Cal.2d 840 , the judgment should be reversed.
Carter, J., concurred.
Appellant’s petition for a rehearing was denied December 28, 1944. Carter, J., and Schauer, J., voted for a rehearing.