Amador ledger., 1910-12-30

the crime, for the single physical act
performed by him was the one handing
the revolver to Delucchi. But it IS
claimed that his conduct and language
bring him within the second class,
that is, by the use of the language
TAKE this and go out and defend
YOURSELF" and the physical act of
handing the revolver to Delucchi.
BY what process of reasoning it can
be held that to tell man to defend
himself is advising him to commit a
crime, am wholly unable to fathom.
1t is the advice given to the average
American boy by his father; and while
under our statute the giving of such
advice to, accompanied by the act of
arming, a child under the age of four
teen years, or a iunatic or idiot, would
| undoubtedly make the offender an ac-
complice in any act of assault com
mitted by such child, lunatic or idiot,
it is not claimed here that Delucchi
comes within one of these classes.
To advise a man to go out and de-
| fend himself'' is not advising him to
commit a crime, but it is telling him
to do something that he has lawful
right to do, even to the extent of TAX
ing human life under some circum'
stances, if it becomes necessary.
The elementary principle of law as
lt.I 1...,.. - Nroap1aof or Evidonpz a
standard text book in almost every
law school in the land, is thus stated
in volume 8, at page II If the prin-
cipal in the crime totally and sub
stantially departs from his instruc-
tions. as if, being solicited to burn
house. he moreover commits a robbery
while so doing, he stands single in
the latter crime while so doing, and
the other is not held responsible for
the robbery as an accomplice. y
That Delucchi totally and substan-
italy departed from his Instructions
"to 90 out and defend himself, y by
committing an assault instead, is es-
tablished beyond the shadow of
doubt. The advice to take the gun
and go out and defend himself was
lawful and innocent In itself; but sup
pose he had given some unlawful ad-
vice, for example, to take the revolver
and 90 out and break open till in
another mans house and burglarize it,
and departing from such Instructions
Delucchi had committed an assault
upon the street upon Lopez, yet even
then, under this elementary rule of
law, Coffman could not be held as an
accomplice to the assault In other
words, to hold Coffman as an accom-
pice, in any assault committed by De-
lucchi, 1t must appear that he advised
an assault, or used language from
which reasonable deduction might be
drawn from the language itself that
such advice was so understood by the
parties, and that no innocent construc-
tion could he reasonably be placed upon
the language used.
The rule laid down in Greenleaf on
Evidence has never been changed in
this state. In People VS. Keefer, 65
Cal. 233, it is said: ''The fact that the
defendant did encourage Chapman in
his purpose to follow and tie the de-
ceased, such encouragement would not
of itself make him accessory to the
killing. - In People VS.. Bunker, 2
Cal. App. Reports, 204, it was held
,'that even if Granger and Tichenor
were guilty of offering bribe. to
Bunkers, a member of the legislature,
they were not accomplices in the crime
of Bunkers in recelving bribe while
a member of the Legislature, and the
conviction of Bunkers was rightfully
neither aided nor abetted nor en-
couraged the crime of receiving a
br1be, for which he was convicted, by
their acts in procuring the money and
giving it to Jordan, who offered the
bribe."
A multitude of authorities upon
this principle underlying the acts and
words that are necessary to make one
an accomplice may be found. Some of
the California cases that may be
mentioned, to say nothing of the
authorities from our sister states are:
People v. Anthony, Sc Cal. 995.
People v. Balinger, II Cal 20.
People v. Dole, l22 Cal. 486.
People v. Compton, 123 Cal. 4l2-
People v. Morine, l33 Cal. 627.
People v. Blackwell, 143 Cal. 259.
People v. Lang, Cal. App. Rep.