PETERS, P. J. After a trial by jury, defendant was found guilty of a violation of section 11714 of the Health and Safety Code. From the judgment of conviction, and from the orders denying his motions for a new trial, in arrest of judgment, and to stay the pronouncement of judg[594]ment, he prosecutes this appeal. The orders denying his motions in arrest of judgment and to stay pronouncement of judgment are not appealable, but are reviewable on the appeal from the judgment. For this reason the direct appeals from such orders must be dismissed. (People v. Williams, 184 Cal. 590 [194 P. 1019]; People v. Fitzgerald, 14 Cal.App.2d 180 [58 P.2d 718]; see cases collected 8 Cal.Jur. p. 492, § 508.)
The information, as originally framed and as amended, contained two counts. The first count charged a violation of section 11714 of the Health and Safety Code, a felony. That section provides: “Every person who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, preparing for sale, peddling or using any narcotic is guilty of a felony punishable by imprisonment in the State prison for not less than one year nor more than six years, and for each subsequent offense shall be imprisoned in the State prison for not less than six years.” The second count charged a violation of section 702, Welfare and Institutions Code, that is, contributing to the delinquency of a minor, a misdemeanor.
When arraigned, defendant pleaded guilty to the misdemeanor charge and not guilty to the felony charge. He also interposed the plea, as to count one, that the judgment about to be entered upon his plea of guilty to count two, would be a conviction of the same offense charged in count one. The court, with full knowledge that defendant intended to rely on the judgment of conviction under count two, pronounced judgment on that count and sentenced appellant to ninety days’ imprisonment and a fine of $500. The court then ruled that conviction of count two was not a bar to a prosecution of count one, and the case proceeded to trial on that count.
The evidence produced on the trial amply supports the judgment. It shows that on the night of January 18, 1943, Krupa instructed his valet and property man Pateakos, a minor of the age of twenty years, to go to his, Krupa’s, hotel room and remove an envelope from his coat pocket; that Pateakos removed the envelope which contained thirty-seven marijuana cigarettes from Krupa’s coat pocket; that he was attempting to leave the hotel with that envelope, and another containing two and one-half such cigarettes, removed by Pateakos from the desk in Krupa’s room, when he, Pateakos, was arrested by two agents of the Federal Bureau of Narcotics. This evidence obviously supports the implied finding [595]of the jury that appellant employed or used “a minor in unlawfully transporting” or “carrying” a “narcotic” in violation of section 11714 of the Health and Safety Code.
On this appeal, no direct attack is made upon the sufficiency of the evidence. However, in addition to the main contention of double jeopardy, appellant does contend that several other serious, prejudicial, and reversible errors were committed at the trial. In view of the conclusion that we have come to on the question of jeopardy, it is not necessary to discuss these other alleged errors.
Count one of the amended information charged a violation of section 11714 of the Health and Safety Code in the following language: “The said Gene Krupa, on or about the 18th day of January, A.D. nineteen hundred and forty-three, at the City and County of San Francisco, did hire, employ and use one John Pateakos, a minor of the age of twenty years, in unlawfully transporting and carrying a quantity of cigarettes containing a narcotic, to-wit: marihuana, also known as cannabis indica and also as cannabis americana.”
The second count, as set forth in the amended information, is as follows: “Gene Krupa is also accused by the District Attorney of the City and County of San Francisco, State of California, by this information, of the crime of misdemeanor, to-wit: Violation of Section 702 of the Welfare and Institutions Code of the State of California committed as follows: The said Gene Krupa on or about the 18th day of January A.D. nineteen hundred and forty-three at the City and County of San Francisco, State of California, did endeavor to induce and persuade and did induce and persuade one John Pateakos, a male minor of the age of twenty years, to go to the room of him, the said Gene Krupa and obtain and remove and transport therefrom from a pocket of a coat located therein an envelope containing a quantity of narcotic, to-wit: marihuana, also known as cannabis indica, and also known as cannabis americana, and said Gene Krupa did also then and there permit and allow said John Pateakos to handle and have in the possession of said John Pateakos cigarettes containing marihuana, the said John Pateakos being then and there in the employ of said Gene Krupa, all of which wilful and unlawful acts and course of conduct of said Gene Krupa as aforesaid did thereby, then and there, manifestly tend to, and did encourage, cause and contribute to the said John Pateakos becoming and remaining such a person as is de[596]scribed in .said Section 700 of said Welfare and Institutions Code, to-wit: A person under twenty-one years of age who violates any law of this State or any ordinance of any town, city, or county, of this State defining crime contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the People of the State of California.”
It will be noted that the second count charges that the appellant violated section 702 of the Welfare and Institutions Code in that he induced the minor to do an act which tended to cause, and caused, the minor to become a law violator. The minor’s violation of law, as alleged in the information, was to “obtain” marihuana from the pocket of a coat in appellant’s room, and to “remove and transport” the marihuana thus obtained.
The attorney-general, in his brief as originally filed in support of the judgment, argued that the two offenses were not necessarily identical because, consistently with the information, the marihuana referred to in count.one may not have been the same marihuana referred to in count two. In a letter written after this brief was filed, however, he requested that this portion of his brief be stricken and disregarded. The attorney-general now concedes (and the concession is in accord with the facts) that both counts in the amended information relate to the same incident, that is, to the minor obtaining the marihuana from Krupa’s coat pocket and carrying it on his person until he was apprehended. Among other things, the letter states: “Count Two as amended in our opinion is not substantially different than Count One. There is additional language used in Count Two as amended relating to possession which it would appear may be implied in the allegations of Count One.” Thus it is now admitted that the only possession of marihuana by the minor involved in either count was the possession involved in the coat pocket incident described in detail in count two. This is of considerable importance. It has been held in prosecutions for violations of the liquor laws that where the only possession shown is that.incident to transporting the liquor, and it does not appear that there was a prior or subsequent possession, the possession and transportation may not be treated as two separate offenses. (People v. Clemett, 208 Cal. 142 [280 P. 681]; In re Chaus, 92 Cal.App. 384 [268 P. 422]; People v. Buchanan, 106 Cal.App.Supp. 765 [288 P. [59750]]; Schroeder v. United States, 7 F.2d 60. See note 74 A.L.R. 411, citing also cases contra.) Since there admittedly was no possession here except that involved in the coat pocket incident, it cannot be held that count two is based in part on a different violation of law by the minor, that is, on a separate unlawful possession not incident to the unlawful transportation which is the basis of count one.
The statements of the law applicable to the doctrine of double jeopardy are by no means clear, and in some respects inconsistent. (See, generally, for traditional statements of the rule, 1 Bishop’s Criminal Law (9th ed.) p. 776; 1 Wharton’s Criminal Law (12th ed.) p. 535, § 394; 2 Freeman on Judgments (5th ed.) p. 1370, § 650; 7 Cal.Jur. p. 955, §97; 15 Am.Jur. p. 53, § 380.) As stated by the Supreme Court of this state, in its more recent decisions, the rule is that a defendant may be convicted of two offenses when they differ in their necessary elements and one is not necessarily included within the other. (People v. Craig, 17 Cal.2d 453 [110 P.2d 403]; People v. Warren, 16 Cal.2d 103 [104 P.2d 1024]; People v. Herbert, 6 Cal.2d 541 [58 P.2d 909]; People v. Coltrin, 5 Cal.2d 649 [55 P.2d 1161]; People v. Day, 199 Cal. 78 [248 P. 250].) That is, although offenses are not the same, if one is necessarily included in the other, the guaranty against double jeopardy applies. Under all tests, the doctrine of included offenses is recognized. Section 1023, Penal Code provides: “When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment of information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” (Italics ours.) Thus it is held that every battery includes an assault, as do mayhem, rape and robbery. (People v. McDaniels, 137 Cal. 192, 197 [69 P. 1006, 92 Am.St.Rep. 81, 59 L.R.A. 578]; People v. Defoor, 100 Cal. 150 [34 P. 642].) Murder includes manslaughter. (People v. Ny Sam Chung, 94 Cal. 304 [28 P. 642, 28 Am.St.Rep. 29].)
Section 1023 in terms applies where the prosecution for the higher offense is first. But it is thoroughly settled that the same rule applies where the prosecution for the lesser offense comes first. (People v. McDaniels, supra; People v. [598]Ny Sam Chung, supra.) Where prosecution for the included offense is first, and there is an acquittal, the defendant may not thereafter be tried for the greater, for if he is not guilty of the lesser included offense he cannot be guilty of the greater. A conviction of the lesser is held to be a bar to prosecution for the greater on the theory that to convict of the greater would be to convict twice of the lesser. These propositions are developed at length in People v. McDaniels and People v. Ny Sam Chung, supra.
It should also be noted that even where crimes arising from the same incident are distinct and noninclusive in the sense that each requires an element not essential to the other, an acquittal in one. may bar prosecution for the other. Where offenses possess a common element, as well as distinct elements, an acquittal, where it can be shown to be a decision negating the existence of the required element, will be res judicata in those jurisdictions which recognize that doctrine as obtaining in criminal proceedings. (See 2 Freeman on Judgments (5th ed.) p. 1364, § 648; 24 Minn.L.Rev. 558; 19 Minn.L.Rev. 476; 10 Wash.L.Rev. 198.)
It is clear that where an offense cannot be accomplished without necessarily committing another offense, the latter is a necessarily included offense. If, in the commission of acts denounced by one statute, the offender must always violate another, the one offense is necessarily included in the other. In the case herein a violation of section 11714, Health and Safety Code, inevitably and necessarily involves a violation of section 702, Welfare and Institutions Code. It is impossible for a person to commit a violation of section 11714 of the Health and Safety Code without committing the misdemeanor denounced by section 702 of the Welfare and Institutions Code. The- person who uses a minor unlawfully to transport a narcotic has necessarily induced the minor to do an act which renders the minor a person subject to section 700, Welfare and Institutions Code, that is, a person who has violated a law of the state (Welf. & Inst. Code, §11160), and this constitutes an offense under section 702 on the part of the person who has thus induced the minor to violate the law.
To repeat, section 11714, Health and Safety Code, cannot be violated without also offending against section 702, Welfare and Institutions Code. Having regard for the incident • upon which both counts are admittedly based, as set forth in [599]count two, exactly the same facts were required to prove an offense under count one as to establish a crime under count two. Every element of the felony charge was necessary and indispensable to a conviction of the misdemeanor charge.
While it is true that section 11714 cannot be violated without offending also against section 702, it is apparent, as respondent urges, that the converse is not true. A person may violate section 702, that is contribute to the delinquency of a minor, otherwise than by causing such minor to become a law violator, or by causing him to violate a law dealing with another subject' than narcotics. If a violation of section 702 always involved a violation of section 11714 (as a violation of § 11714 always involves a violation of § 702) the offenses would be identical in the sense that neither would involve an element not necessary for the other. But, as we have said above, the cases are clear that the principle of double jeopardy applies where one offense is necessarily included in the other, as well as where they are identical. It is of the nature of included offenses that the included offense may be committed without accomplishing the inclusive offense.
In the instant case, the essence of both offenses charged against appellant was the commission of acts which contributed or tended to contribute to the delinquency of a minor. It is not necessary to establish an offense under section 702 that the minor should actually have been debauched or corrupted. (People v. Kinser, 99 Cal.App. 778 [279 P. 488].) Nor is such proof necessary to constitute the crime under section 11714. Under section 702 the offense of contributing to the delinquency of a minor is a misdemeanor. Likewise, some other violations of the code provisions dealing with narcotics are misdemeanors. (See Health and Saf. Code, §§ 11710-11716.) But under section 11714 where a minor is used unlawfully to transport, carry, sell, etc. any narcotic, the person thus using the minor is guilty of a felony. Though not expressed, the apparent reason for increasing the grade of crime above that which prevails generally as to narcotic offenses is the tendency of the act denounced by section 11714 to contribute to the delinquency of the minor. Viewed in relation to section 702, where contributing to the delinquency of a minor takes the form of using the minor unlawfully to transport narcotics, the offender is subject to prosecution under section 11714, which creates a felony carrying a heavier [600]penalty than section 702. However, the person accused should not also be subject to the misdemeanor penalty. He is liable to prosecution under either section, but a conviction or acquittal of an offense under one bars prosecution under the other. Where the State instead of prosecuting first for the offense which carries the heavier penalty, prosecutes for the offense which carries the lighter penalty, or accepts a plea of guilty to that offense, it is without right thereafter to prosecute for the offense which carries the heavier penalty. This follows from the thoroughly settled principle that a conviction or acquittal of an included offense bars prosecution for the greater offense. (People v. McDaniels, supra.)
By way of illustration, robbery is of the first degree where perpetrated by torture or by a person armed with a dangerous or deadly weapon. (Pen. Code, § 211a.) This does not mean that where the robbery is thus committed the defendant may be punished for both robbery of the first degree and for robbery of the second degree, the offense he would have committed had he acted otherwise than he did in fact, that is, if he had accomplished the crime without torture or use of such weapon. So in the present case the defendant may not be convicted of both a felony and a misdemeanor on the basis of the same incident because if he had contributed to the delinquency of the minor otherwise than he did in fact he could have been prosecuted for a misdemeanor only.
The principle of included offenses is recognized in the rule, referred to above, that every battery includes an assault, as do mayhem, rape and robbery. (People v. McDaniels, supra; People v. Defoor, supra.) We have heretofore referred to the cases arising under liquor laws in which it has been held that the possession involved in the transportation of liquor may not be prosecuted after conviction or acquittal on charges of transportation. (People v. Clemett, supra; In re Chaus, supra; People v. Buchanan, supra; Schroeder v. United States, supra.) In People v. Lopez, 46 Cal.App.2d 857 [117 P.2d 10], section 1159, Penal Code, was involved. It provides: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” The defendant was charged with aiding and abetting her co-defendant in commission of statutory rape. She was found guilty of contributing to the delinquency of a [601]minor, that is, violation of section 702, Welfare and Institutions Code. She contended that the offense of which she was convicted was not necessarily included in the offense charged. The judgment against her was affirmed.
In the case of some included offenses, an additional element is required to establish the greater offense, as with assault and battery. In the present case it is not even required that additional facts he proved. The identical facts which are required to convict under count two constitute a violation of section 11714.
As already pointed out, it is the law that a defendant may he convicted of two offenses when they differ in their necessary elements and one is not necessarily included within the other. (People v. Craig, supra; People v. Warren, supra; People v. Herbert, supra; People v. Coltrin, supra.) Thus in People v. Coltrin, supra, it was held that two separate noninclusive offenses are committed where the victim dies of an illegal abortion. Neither offense necessarily involves the commission of the other. Abortion does not necessarily involve the death of the victim, and murder may be committed otherwise than in the perpetration of an illegal abortion. Moreover, where death results from an abortion the wrongdoer has accomplished two wrongs. He has put an end to the embryo, as well as to the victim of the illegal operation. But a violation of section 11714 necessarily constitutes a violation of section 702.
. Statutory rape and incest arising out of the same act have been held to constitute separate noninclusive crimes. (People v. McCollum, 116 Cal.App. 55 [2 P.2d 432].) Each requires proof of an element not essential to the other, incest, the prohibited relationship, rape, want of consent, actual or constructive. Either may be committed without the other. Where the offender commits both offenses by means of a single act his conduct is doubly wrong. He should he punished for both crimes, although they arise from a single act. But a violation of section 11714 cannot he accomplished without violating section 702.
Death resulting from reckless driving affords another illustration of separate noninclusive offenses. (People v. Herbert, 6 Cal.2d 541 [58 P.2d 909].) Where death ensues from reckless driving the offense of manslaughter is complete. But manslaughter may arise otherwise than through automobile [602]injury and death. Conversely the offense of reckless driving is complete although there is no injury to person or property.
In People v. Day, 199 Cal. 78 [248 P. 250], the question decided was that assault by means or force likely to produce great bodily injury (Pen. Code, § 245), and the crime denounced by section 244, Penal Code, were separate, noninclusive offenses. Section 244 provides: “Every person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. ” It is apparent that an assault by means or force likely to produce great bodily injury could occur by other force or means than vitriol, corrosive acid, or caustic chemical. But to establish the separate, noninelusive character of the two offenses the opinion found it necessary to demonstrate that there could be a violation of section 244 without inevitably committing an assault by means or force likely to produce great bodily injury. This the court did by holding that the crime under section 244 would be accomplished although the vitriol, corrosive acid, or caustic chemical thrown was so small in quantity or weak in strength as to be incapable of producing great bodily injury. Illustrations could be multiplied indefinitely.
The decisions in People v. Stangler, 18 Cal.2d 688 [117 P.2d 321] and People v. Bevans, 19 Cal.App.2d 288 [65 P.2d 92], are not inconsistent with these conclusions. In the Stangler case the defendant was charged in separate counts with statutory rape and violation of section 288, Penal Code (lewd and lascivious acts upon the body of a child under 14), based upon the same incident. He was acquitted of violating section 288, but convicted of rape. He contended that the verdicts were inconsistent and that the acquittal of violation of section 288, was, therefore, an acquittal of rape. Statutory rape does not inevitably involve a violation of section 288, for the offense under that section must be committed upon the body of a child under the age of fourteen, whereas statutory rape is perpetrated where the female is under eighteen. Although there is some confusing language in this case, it is clear that the court did not purport to overthrow the law as set forth in extenso in such eases as People v. Coltrin, supra; People v. Herbert, supra, and People v. Day, [603]supra. (As to effect of inconsistent verdicts generally, see 43 Harv.L.Rev. 657; 28 Mich.L.Rev. 339; 14 Cal.L.Rev. 336 ; 10 So.Cal.L.Rev. 208.) It should also he pointed out that it appears from an examination of the record in People v. Slangier that, insofar as the information charged violation of section 288, it was not based on the rape proper, but on acts preceding it, which, it has been held, may constitute a separate offense. (People v. Jameson, 136 Cal.App. 10 [27 P.2d 935]; People v. McAfee, 82 Cal.App. 389, 405 [255 P. 839].)
In the Bevans case, supra, the defendant was convicted on two counts, one charging contributing to the delinquency of a minor, the other violation of section 288. The court pointed out that one act was proved which would not come under the provisions of section 288, Penal Code, as it was not “upon or with the body, or any part or member thereof” of the child, but which was clearly denounced by the juvenile court law.
It has been said that no rule of thumb is adequate to all cases; that any single test may reach absurd or unjust results in particular cases. (24 Minn.L.Rev. 556, 562; 22 C.J.S. 414.) Regard should be had to the type of offense, notions of fairness, and the purpose of the statute defining the crime involved, etc. (18 Cal.L.Rev. 171.) In the case herein it is obvious that fairness requires that the defendant should not be punished twice for what he did.
It is true that the effect of this holding is that defendant escapes punishment for the more serious offense, violation of section 11714, Health and Safety Code, a felony, and suffers only the lighter punishment prescribed for an offense under section 702, Welfare and Institutions Code, a misdemeanor. This result does not, necessarily, show a weakness in the law. The doctrine that no man shall be put in jeopardy twice for the same offense is based upon sound and fundamental principles, which are recognized by both the federal and state Constitutions. The fault in the present case, if any there be, lies in the procedure adopted. It was within the discretion of the law enforcement authorities to prosecute defendant for either the felony or the misdemeanor. They elected to frame an information charging the two identical offenses. This made it possible for the defendant to adopt the procedure he did.
It should also be pointed out that the record shows that the plea to both counts was made at the same time. Judgment [604]was not pronounced on the plea of guilty to the second count until after defendant had made his plea of not guilty and double jeopardy to the first count. The court, therefore, pronounced judgment on count two knowing that defendant intended to rely on that judgment in bar of the felony charge. An examination of the pertinent code sections indicates that the trial court, instead of accepting the plea of guilty to count two, and pronouncing judgment thereon, had it desired to hold defendant for the higher offense, could very likely have dismissed the second count, even after plea, and have refused to enter judgment thereon. Section 1021 of the Penal Code provides: “If the defendant was formerly acquitted on the ground of variance between the indictment or information and the proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense(Italics added.)
The above section recognizes a right in the court to dismiss a charge in order to hold the defendant for a higher offense. It is not provided that the dismissal must be made before plea. It has been held that a dismissal made to hold for a higher offense after a jury has been impaneled and sworn, that is, after jeopardy has attached, will bar a subsequent prosecution for a higher offense in which the dismissed charge is included. (People v. Ny Sam Chung, 94 Cal. 304 [28 P. 642, 28 Am.St.Rep. 29]; People v. Hunckeler, 48 Cal. 331; 7 Cal.Jur. 944, 949, 953; see, also, People v. Horowitz, 131 Cal.App. Supp. 791 [19 P.2d 874].) But it does not follow that where the defendant has not submitted himself to trial, but has offered a plea of guilty to the count charging the lighter offense, that the court is without right to dismiss that count in order to hold the defendant for the higher offense.
There are also sections 1385 and 1387, Penal Code. Section 1385 provides: ‘1 The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.” (Italics added.) By section 1387 it is provided that the order for dismissal is not a bar if the offense is a felony. (People v. Smith, 143 Cal. 597 [77 P. 449]; People v. Brown, 42 Cal.App. 462 [183 P. 829]; People v. Saenz, 50 Cal.App. 382 [195 P. 442].)
[605]As to justices’ courts there is a specific section, section 1429, Penal Code, which permits the judge to reject a plea to the lesser offense in order to hold the defendant for the greater. It provides in part as follows: “. . . If the defendant pleads guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appear to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury, or any information which may be filed by the district attorney.”
If sections 1021, 1385 and 1387 of the Penal Code, referred to above, are not broad enough to enable the superior court to réject the plea of guilty to the lesser offense in order to hold the defendant for the greater, then the matter calls for legislative rectification.
The appeals from the orders denying the motions for arrest of judgment and to stay pronouncement of the judgment are dismissed. The judgment and order denying the motion for a new trial are reversed.
Ward, J., concurred.