People v. Kloss

BARNARD, P. J.

The facts in this case are practically identical with a part of the facts in the case of

People

v.

Hatfield,

129 Cal. App. 162 [18 Pac. (2d) 366]. The

[196]

evidence indicates that these defendants either disposed of the body referred to in the case just mentioned or assisted in the disposal of the same. In the present case the defendants were charged with being accessories after the fact, under section 32 of the Penal Code. They were tried by a jury and from a judgment of conviction following a verdict and from an order denying a motion for a new trial, this appeal is taken.

The main ground urged for reversal, which we think must be sustained, is that the information does not state facts sufficient to constitute a public offense. The charging part of the information reads as follows: “The District Attorney of the County of Imperial hereby accuses Robert Kloss and John Williams of a felony, to-wit: Violation of Section 32 of the Penal Code of California, to-wit: Accessories after the fact, in that on or about the 10th day of May, 1932, in the County of Imperial, State of California, the said defendants, Robert Kloss and John Williams, who, after having full knowledge that a felony had been committed, the said defendants, Robert Kloss and John Williams, did then and there conceal and harbor the person committing said felony from the magistrate. ’ ’

■Section 32 of the Penal Code, upon which this charge is based, reads as follows: “Who are accessories. All persons, who after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories. ’ ’

Section 32 of the Penal Code sets forth two ways in which the offense there involved may be committed: First, where with full knowledge that a felony has been committed, the crime or the fact of its commission is concealed from the magistrate; second, where with full knowledge that a felony has been committed, the person charged with or convicted thereof is harbored and protected. Without question, a defendant could be charged with committing either one or both of these offenses. Neither of these offenses necessarily involves the other and each of them naturally rests upon acts and circumstances at variance with those unon which the other is based.