Ex parte Goldman

McLAUGHLIN, J. The petitioner was indicted by the grand jury of the county of Merced for the crime of “being an accessory to the commission of a felony.” The particular circumstances of the offense charged are set forth in the indictment as follows: “That said Edward Goldman on or about the 20th day of January, A. D. nineteen hundred and six, .... (after and with full knowledge that one Ross Dunn theretofore at, and in said county of Merced, and on or about the 18th day of January, A. D. 1906, had willfully, unlawfully, and feloniously taken, stolen, and carried away from the freight depot of the Southern Pacific Company in the city of Merced, ten sacks of alfalfa seed of the value of $227.50; .... and said alfalfa seed being at the time it was so taken, stolen, and carried away the personal property of one W. C. Dallas) did willfully, unlawfully, and feloniously conceal the property stolen as aforesaid, and did conceal from the magistrate the commission by said Ross Dunn of said felony. ’ ’

It is contended in behalf of the petitioner that the indictment does not charge a public offense, and hence that his imprisonment is unlawful. In answer to this contention it is argued (1) that habeas corpus is not the proper proceeding for the determination of the question involved; (2) that the offense is charged in the language of section 32 of the Penal Code, and therefore the indictment is sufficient. It is the settled rule in this state that defects or irregularities in an indictment will only be reviewed on appeal from the judgment, but, if the facts alleged do not constitute a public offense, habeas corpus will lie: In Matter of Corryell, 22 Cal. [256183]; Ex parte Harrold, 47 Cal. 130; Ex parte Maier, 103 Cal. 479, 42 Am. St. Rep. 129, 37 Pac. 402; Ex parte Williams, 121 Cal. 331, 53 Pac. 706. Our inquiry in the present proceedings must, therefore, be confined to the single question whether the indictment charges the commission of a public offense. If the indictment only contained the general accusation that the petitioner had committed a felony “by being an accessory to the commission of a felony,” it would, undoubtedly, be wholly insufficient and void. This proposition is too plain to require elaboration or citation of authorities. We must, therefore, examine the facts alleged, in order to determine whether the acts or facts detailed constitute the offense designated in the general charge. The attorneys for the people defend the indictment on the ground that it sufficiently appears therefrom that the petitioner concealed his knowledge of the commission of the offense of grand larceny from a magistrate. This defense is equivalent to an admission that the prisoner should be discharged. Knowledge of the commission of a felony is, and always has been, necessary to charge a person as an accessory. Intent is an essential element of all crimes, and a person could hardly intend to conceal the commission of a crime, or render, assistance to a criminal, when he was wholly ignorant of the commission of an offense or the participation of the person assisted. Hence the language, “after full knowledge that a felony has been committed,” found in section 32 of the Penal Code, is but the statement of an essential prerequisite to guilty concealment, protection, or assistance. In other words, it is but a reiteration of the common-law rule that a person must know that he is assisting a criminal, or else he cannot be charged as accessory. While the existence of such knowledge was an essential ingredient of the offense at common law, still the mere neglect to disclose it or inform the authorities that a felony had been committed did not constitute the person maintaining such silence an accessory: 1 Bishop’s Criminal Law, sec. 694; 1 Am. & Eng. Ency. of Law, p. 268; Blackstone’s Commentaries, p. 37, n. 25, 120. Section 32 of the Penal Code is but a codification of the common-law rule or definition, and hence the supreme court of this state has pointedly said: “The word conceal, ’ as here used, means more than a simple withholding of knowledge possessed by a party that a felony has been committed. This concealment necessarily includes the