[417] COUNSEL

Thomas Gaetano Phillip Luparello, in pro. per., Michael Ian Garey, Ann Shaw and Scott R. Jakust, under appointments by the Court of Appeal, for Defendants and Appellants.

John K. Van de Kamp, Attorney General, Keith I. Motley, M. Howard Wayne and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

[418] OPINION

KREMER, P.J.

Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (Pen. Code,^[1] §§ 182, subd. 1, 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor's conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants' contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello's wife, Terri left her job in May 1980. Terri then met and shortly thereafter married Ed Gadzinski.

Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello's house. Luparello then had three other roommates: Brad Wilson, Ben Wilson and Ron Jennings.

On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello's house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello's child.

Luparello called home on May 9 and a roommate told him Terri had left. Luparello returned immediately and began an intensive search for Terri. He [419] contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed's workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello's patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello's roommate, and the four drove to Orduna's house. On the way, Luparello and Salmon discussed the cost for Orduna's and Salmon's services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.

Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as "Spooky" gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to "thump" the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and "Spooky" left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.

On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.

Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. 1, [420] 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.

After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.

LUPARELLO'S APPEAL

I

PROSECUTORIAL MISCONDUCT

(1a) A prosecutor is not merely an advocate for the People. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ..." (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal. Rptr. 594, 487 P.2d 1234].) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal. Rptr. 855, 659 P.2d 1144].) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal. Rptr. 632, 523 P.2d 672].) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance "in isolation might not be considered `grossly improper', [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction." We begin by reviewing each allegation and then determining their cumulative effect, if any.

A. Improper References to Street Gang Membership

In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the "F-Troop" gang, an ethnic [421] street gang based in Orange County. (2) Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.

Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor's attempt to inform the jury regarding Orduna's prior assistance in Luparello's dispute with some neighbors. The first of these occurred during Brad Wilson's direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued: "... What was the substance of the conversation?

"A. That at a previous time — I'm unsure when —

"[Luparello's Counsel]: Same objection.

"The Court: The objection is sustained as to the defendant Orduna. [¶] You may proceed.

"Q.... What was the substance of the conversation, where Dr. Luparello was indicating to you what Dr. Luparello's previous relationship with Mr. Orduna was?

"A. He said that early in the year he had trouble with his neighbors across the street and that he had — I don't know what to say, the exact words — used them or got their help in settling the dispute.

"Q. Referring to Mr. Orduna?

"A. Yes.

"[Luparello's Counsel]: Object. Move to strike. Irrelevant. And the previous grounds. [¶] It also appears to be speculation as to, as to who's involved and what it is.

"The Court: The testimony will be stricken as to the defendant Orduna. The objection is sustained."

[422] Later, during the testimony of Ben Wilson, the prosecutor elicited similar testimony: "Q. Didn't he say to you, didn't Dr. Luparello say to you that he felt Carlos and Johnny could take care of this problem at this time?

"A. Yes, Sir, he did.

".... .... .... .... .... .... .

"Q.... yes. Didn't Dr. Luparello also tell you they had taken care of other problems and they were sure they could take care of this one, also?

"A. Yes." Luparello immediately objected, asserting this query had violated the trial court's directive regarding evidence of Orduna's past acts. The trial court agreed but determined any wrongdoing could be remedied by permitting the neighbor involved in the alleged dispute to be called as a defense witness. Luparello's counsel agreed this would resolve potential problems and the neighbor was called and testified favorably for Luparello.

We agree with the trial judge and Luparello's trial counsel that any prejudice flowing from the prosecutor's questions was greatly minimized by the neighbor's testimony, which completely eliminated any suggestions of wrongdoing by Orduna in connection with the neighborhood dispute. Reversal on this basis is not required. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

(3) On two other occasions, however, the prosecutor ignored the trial court's earlier admonition and attempted to put before the jury evidence Orduna belonged to a street gang which was routinely involved in violent and threatening activities. In the first instance, the prosecutor questioned Martin's neighbor who witnessed the shooting and asked whether he had been threatened sometime before testifying. The neighbor responded someone had written "FXTX Vida" on his van. In response to Luparello's motion to strike, the prosecutor, out of the presence of the jury, interpreted the graffito as meaning "F Troop, Live or Die." The trial court admitted the evidence, but admonished the jury to consider the evidence only in regard to the witness's credibility. (See People v. Lybrand (1981) 115 Cal. App.3d 1 [171 Cal. Rptr. 157].)

This admission of marginally relevant evidence was later turned on its head when the prosecutor sought to take advantage of its inflammatory effect in his cross-examination of Police Officer Daniel McCoy who had been called as a defense witness for the purpose of testifying regarding statements made by Michael Martin, the victim's brother, shortly after the shooting. Michael Martin was the person who had answered Orduna's knock on May [423] 14 and had called his brother to the door. Michael described the person he saw to Officer McCoy as "Mexican," "five three to five five," "kind of stocky," and wearing a black or dark blue beanie "like the F-Troopers and Delhi guys wear."

Perceiving that an opportunity had been thrust into his hands to get before the jury suggestive and prejudicial information which he had otherwise been prevented from introducing, the prosecutor cross-examined Officer McCoy as follows: "[Prosecutor]: You heard a reference in the tape — it's on page 3 and it's in the middle of the page on page 3 — to F-Troopers. And the question was, `You talking about the beanie, the navy type beanie, the cloth beanie that goes over the head?'

"And then Mike's answer was, `Like the F-Troopers and Delhi guys wear, yeah.'

"Is that right?

"A. Yes, Sir.

"Q. What type of experience have you had with this `F' Troop gang?

"A. I spent five years —

"[Luparello's Counsel]: I have to object to the relevance of saying `this "F" Troop gang.'

"The Court: Sustained.

"[Luparello's Counsel]: I have no objection if the officer corroborates that that's what a lot of them wear. But the way the question was phrased —

"The Court: The objection's been sustained.

"[Prosecutor]: I'll rephrase the question then, Your Honor.

"Q. What experience do you have with `F' Troop, as a Santa Ana police officer?

"A. I was assigned to the street gang detail for five years and during that time conducted many investigations involving `F' Troop.

"Q. What type of gang is `F' Troop?

[424] "A. It's a street gang.

"Q. Where are they located?

"[Luparello's Counsel]: I have to object again. It's not relevant to this case.

"[Prosecutor]: It certainly is, Your Honor.

"The Court: The objection is sustained.

"Q. Well, have you become aware of the type of hats that `F' Troop gang members where [sic]?

"A. Well, their clothing, what they have worn, yes, sir.

"Q. What type of clothing does this `F' Troop gang where [sic]?

"A. I've seen them wearing the beanies.

"Q. What other type of clothing do they wear?

"A. (No response.)

"Q. Like pants, do they wear khaki type pants?

"A. Yes, Sir.

"Q. Have you seen them wearing just plain t-shirts?

"A. Yes, Sir.

"Q. Do they wear any particular type of shoes?

"A. No, not a particular type but a variety.

"Q. Over what period of time have you had occasion to come in contact with `F' Troop gang members in the City of Santa Ana?

"A. Over a five-year period.

"Q. And had you been investigating crimes that have been committed by these gang members?

[425] "A. Yes, Sir.

"Q. And you've been assigned to the crimes against persons detail at the Santa Ana police department; is that right?

"A. Yes, Sir.

"Q. That involves homicides and attacks against people?

"A. Yes, Sir.

"Q. Prior to that you were assigned to a gang detail specifically involving the apprehension of gang type warfare in Santa Ana?

"A. Yes, Sir.

"Q. Was it during this period of time that you became aware of this `F' Troop gang?

"A. Yes, Sir.

"Q. Does the `F' Troop gang —

"[Luparello's Counsel]: I object. I move to strike the entire thing about `F' Troop.

"[Prosecutor]: Your Honor, he brought it out.

"[Luparello's Counsel]: There's absolutely no relevance. The witness merely stated that the type of beanie was consistent with, in his opinion, `F' Troop or the Delhi guys and from that a line of irrelevant questions is being asked. Object. Move to strike what's in so far.

"The Court: Well, the objection to this question, the court will rule on it when counsel finishes the statement. Or the question.

"[Prosecutor]: Fine. Thank you, Your Honor.

"Q.... Does F-X-T-X signify the `F' Troop gang?

"A. Yes, Sir.

"The Court: Then the objection to that question will be sustained. The answer is stricken.

[426] "I take it you still had your objection?

"[Luparello's Counsel]: Yes."

In this manner, the prosecutor used a relatively innocuous description of a type of head gear worn by the man who knocked at Martin's door and began a foray based consistently on leading questions in which he attempted to inform the jury by innuendo not only that F-Troop was a street gang whose members were suspected of committing homicides and other violent attacks on persons, but also that the gang was likely connected to the case in such a way that its members had threatened a material witness.

The People seek to justify the prosecutor's conduct on the theory that defense counsel "opened the door" by introducing Michael Martin's taped statement which included the "F-Troop" reference. The fact that a topic is raised on direct examination and may therefore appropriately be tested on cross-examination, however, does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination. Here, the prosecutor's attempt to cast Orduna as a member of a violent gang was irrelevant for any purpose other than to suggest Orduna's predisposition to commit violent acts, a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). (People v. Perez (1981) 114 Cal. App.3d 470, 477 [170 Cal. Rptr. 619]; see also In re Wing Y. (1977) 67 Cal. App.3d 69, 79 [136 Cal. Rptr. 390].)

While the court's sustaining of defense objections and striking of testimony suggested it did not condone such conduct, the flagrancy of the prosecutor's misconduct makes it highly unlikely that even a conscientious jury could completely ignore what it had heard. (See People v. Taylor (1961) 197 Cal. App.2d 372, 382 [17 Cal. Rptr. 233]; see also People v. Kirkes (1952) 39 Cal.2d 719, 726 [249 P.2d 1].) On the other hand, we must recognize that the prejudicial effect of inadmissible gang membership evidence lies in its tendency to suggest that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal. Rptr. 165, 647 P.2d 569] (plur. opn.); People v. Perez, supra, 114 Cal. App.3d at p. 477.) Here, the evidence surrounding the planning and preparation for the assault on Mark Martin adequately demonstrated Orduna's willingness to use weapons and engage in acts of violence. (See ante, p. 419.) In this context, evidence connecting Orduna to a violent street gang — although hardly desirable from Orduna's or Luparello's point of view — did not have the impact it might otherwise have had. Moreover, while the prosecutor's misconduct firmly implanted in the jurors' minds that F-Troop was a violent gang, the evidence of Orduna's membership in the gang [427] was tangential. In an attempt to minimize the effect of the prosecutor's misconduct, the court was careful to instruct the jurors "... that there [was] no credible evidence in this case that Carlos Orduna was a member of any criminally oriented gang."

California appellate courts have repeatedly recognized that even flagrant misconduct by a prosecutor does not relieve them of their obligation to ascertain whether the misconduct resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 120-121 [32 Cal. Rptr. 4, 383 P.2d 412]; People v. Wirth (1960) 186 Cal. App.2d 68, 78 [8 Cal. Rptr. 823].) Under the circumstances of this case, we do not believe that the gang membership evidence which was improperly placed before the jury makes it reasonably probable that the jury would have reached a different verdict in the absence of the misconduct. (See People v. Munoz (1984) 157 Cal. App.3d 999, 1013 [204 Cal. Rptr. 271].)

B. Bad Faith Inquiry

(4) Ben Wilson testified on direct examination by the prosecutor that Luparello told him he paid $200 for the assistance of Orduna and Johnny Salmon. The prosecutor was apparently aware that informers who had been incarcerated with Salmon stated he told them he was paid $800 up front and was to receive $10,000 for beating Mark Martin and another $15,000 as a bonus for killing him. During a break in Ben Wilson's testimony, the respective counsels discussed in camera the possibility of admitting the informers' statements, and the trial court indicated its preliminary view that such evidence was inadmissible, the final decision to be reached at a later hearing.^[2]

Thereafter the prosecutor resumed his questioning of Ben Wilson as follows: "Q. Now, do you recall Dr. Luparello ever telling you that he had paid Johnny Salmon $800 up front?

"A. No, Sir, I do not.

"Q. And that he was to get a total of $10,000 —." Luparello's counsel objected, challenging the leading nature of the question and the prosecutor's good faith in asking it. The court agreed with defense counsel and, after a [428] voir dire examination of Wilson in chambers, prohibited the prosecutor from continuing his line of questioning. The court and defense counsel then agreed to forego any admonition to the jury on the theory it would merely draw attention to the point.

We are troubled by the prosecutor's attempt to use his questioning to get before the jury information he could not legitimately introduce directly through the testimony of the informers. (See People v. Perez (1962) 58 Cal.2d 229 [23 Cal. Rptr. 569, 373 P.2d 617]; People v. Blackington (1985) 167 Cal. App.3d 1216 [213 Cal. Rptr. 800].) We cannot conclude, however, that such conduct requires reversal. The suggestion contained in the prosecutor's question merely disagreed in amount with facts already admitted by Wilson. The jury was properly instructed pursuant to CALJIC No. 1.02 that questions asked by counsel are not evidence and are not to be considered as such. In no sense can it be considered reasonably probable that a different result would have been reached in the absence of the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)

C. Misconduct During Closing Argument

(5a) Luparello asserts the prosecutor unacceptably and inflammatorily compared him to Charles Manson and unconstitutionally commented on Luparello's failure to testify. (1b) In reference to the first allegation, we note the prosecutor may broadly argue the facts and law of a case but may not prejudicially misrepresent the character of the accused nor intentionally appeal to the fears and emotions of the jury. (People v. Fosselman, supra, 33 Cal.3d at pp. 580-581; People v. Jones (1970) 7 Cal. App.3d 358, 362-363 [86 Cal. Rptr. 516].) In discussing the instruction on aiding and abetting, the prosecutor stated: "So this is one who aids and abets. One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are committing, but he's also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.

"If one person sets in motion some people that are out of control and they go in and start killing people —

"An example might be, and we talked about it, is the Charles Manson case type of thing. Charles Manson is a classic example of the aider and abettor. He apparently wasn't present at any of the crime scenes. Yet he set in motion some people that were just out of control. And they killed and maimed at will. Yet Charles Manson was responsible for those particular crimes.

[429] "And he's responsible under theories such as this one here where even though the person didn't intend that a particular crime be committed, that person is liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.

"So if you send some — I hate to use the word `crazy' because it's got different meanings in the criminal law. But if you send some people that are completely out of control to go do something, and it's reasonable and probable that they will get carried away and execute someone, then you're guilty, just as guilty as they are, of that execution."

Luparello did not properly preserve his challenge to this argument by objection below. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal. Rptr. 1, 609 P.2d 468].) (5b) In any event, the prosecutor's comments were neither erroneous nor prejudicial. His reference to Charles Manson provided a proper, albeit provocative, example of the workings of an aider and abettor theory. The comments neither expressly or impliedly parallel Luparello's character to that of Charles Manson. Mere reference is not an impassioned plea aimed at the jury's fears and anxieties.

(6) Luparello further asserts the prosecutor's following argument violates the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which prohibits comment on the defendant's exercise of his constitutional right not to testify: "Now with respect to Mr. Chatterton [Luparello's counsel], a number of places here Mr. Chatterton has indicated to us that — at one time Mr. Chatterton indicated that Dr. Luparello wouldn't have wanted to tell Brad that, referring to something, I don't know what he's referring to offhand. One time Mr. Chatterton indicated that, either in argument or in the opening statement, that Dr. Luparello lied to the police because of Kelly Schwulst's statement to him.

"Another time Dr. Luparello asked Brad to go to the door at the Martin house because Brad wouldn't be involved in that, in a beating, says [sic]. That's why Dr. Luparello asked Brad to go to the door. Remember that?

"Another time — what do you think Dr. Luparello believed with respect to whether Brad would lie or not?

"All of those questions and statements suffer from the same problem. There is no evidence in this case whatsoever as to what Dr. Luparello was thinking about why Dr. Luparello asked Brad to do this, what Dr. Luparello heard from anyone other than what we heard in the case. What Dr. Luparello thought because Kelly called him. No evidence of that. Any evidence of [430] what was going on in Dr. Luparello's mind with respect to that is just rank speculation.

"We talked about this early on. Everything that is an inference from the facts has to be established by the facts. What are the facts? This is an important issue in this case. Why did Dr. Luparello lie so much to the police? Mr. Chatterton's answer is because of what Kelly Schwulst had told him. Does that wash in your mind?

"One, there is no evidence whatsoever that that was what caused Luparello to lie to the police. That's just speculation by Mr. Chatterton. The only thing that we have in that respect is that Kelly did tell him that. So apply that in your experience."

While it is undisputed "Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence...." (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal. Rptr. 652, 623 P.2d 213]; accord People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) Here, the prosecutor neither comments directly on Luparello's failure to testify nor indirectly encourages the jury to speculate about his silence. He instead properly reviews critical aspects of the defense theory relative to Luparello's mental state and points out the dearth of evidence to support the theory. Luparello's testimony was not necessarily the only material evidence on this point. That he did not testify and did not choose to proffer other relevant evidence does not preclude the prosecutor from illuminating this deficiency. The prosecutor's comments are not Griffin error.

D. Delay of Trial

(7a) On October 6, 1981, all parties stipulated the trial would recess during the trial judge's previously scheduled vacation and would reconvene on November 4, 1981. However, on November 4, the prosecutor could not proceed in the instant case because he had become unexpectedly involved with another murder trial. The prosecutor requested the instant trial be continued until November 23, 1981. After a hearing, the trial court granted the request. Luparello now argues this "delay" denied him a speedy trial and is another ground for misconduct. We find no merit in this contention.

Luparello cites People v. Hannon (1977) 19 Cal.3d 588 [138 Cal. Rptr. 885, 564 P.2d 1203], for the proposition the "constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its [431] officers." (Id. at p. 609.) However, Hannon dealt exclusively with pretrial delay and has no relevance to the instant case. Indeed, even assuming the cited language did apply, Luparello's assertion would still fail. He has not shown, nor does the record reveal, the prosecutor intentionally or negligently delayed the instant proceedings. As was determined at the trial court's hearing on this matter, the delay resulting from the prosecutor's conflicting commitments was unavoidably unforeseeable.

In reviewing Luparello's allegations of misconduct, individually and collectively, while we find error, we find no significant prejudice to him.

II

INEFFECTIVE ASSISTANCE OF COUNSEL

(8) The charge of inadequate assistance at trial is a serious one, and the appellant has the burden of proving his claim. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859].) "[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings. [Citations.]" (People v. Fosselman, supra, 33 Cal.3d at p. 584.) Further, "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses counsel had no rational tactical purpose for his act or omission." (Id. at p. 581.) Luparello grounds his complaint in his counsel's failure to oppose the People's motion to dismiss and his later failure to seek dismissal when his rights to a speedy trial were denied.

(9a) Early in the trial, the trial court was asked to determine the admissibility of a hearsay statement by Luparello. The court initially excluded the statement (although it later reversed its ruling and allowed admission). Believing the case against Luparello was jeopardized by the initial exclusion of the hearsay statement, the People sought to dismiss the information against Luparello. Luparello's counsel challenged this dismissal, and it is this act which Luparello now faults. Initially, we note the record clearly shows Luparello personally endorsed his counsel's action. Moreover, counsel's argument on this motion evidences numerous tactical decisions for his opposition. Counsel was aware jeopardy had not attached and the People would refile against Luparello. A new trial would not present the same obstacles to the admission of the challenged hearsay statement, and the increased investigation time afforded by a dismissal would likely strengthen [432] the People's case which counsel viewed as "weak" at that time. In sum, Luparello can not be heard to complain for a tactical action which he personally endorsed.

Luparello also contends his counsel should have sought dismissal when the trial was not commenced in accord with section 1382, subdivision 2. This section mandates dismissal when trial in a superior court is not commenced within 60 days after the information is filed. In the present case the information was filed on July 24, 1981, and trial was commenced on September 16, 1981. Given the elapsed time between these dates, Luparello's assertion must be seen as a result of a miscalculation. The 60th day of the statutory period was September 21, 1981. On these facts, Luparello's assertion must fail.

(7b) Finally, Luparello faults his counsel for failing to seek dismissal when the trial could not be reconvened on November 4. As discussed above, this delay did not infringe upon Luparello's right to a speedy trial, and there was no evidence of misconduct in the prosecutor's seeking of the continuance. (9b) Most importantly, the record shows Luparello's counsel again chose to proceed for tactical reasons. In discussing the court's ruling on a hearsay statement, Luparello's attorney stated: "I took the tactical position that I wasn't going to make a big stink about it; that the relationship that had been established up to that point in time had me winning on this issue when opposed to Mr. Brown [the prosecutor], and with Mr. Brown's position that he wasn't going to relitigate — and I recognize that was really in reference to going to another court — but it still led me to believe that with Mr. Brown and I in front of this court on that issue, I was going to win that issue.

"So rather than insist that we proceed to trial immediately or that we even oppose the trailing condition, we didn't do that. And I think that had we made a stink this court would have felt compelled to direct the district attorney to have somebody ready to try this case at a sooner time. But we continued to trail this matter until November the 23rd.

"I advised my client, during that period of time, to be patient, though he wanted to get this thing to trial. He doesn't like sitting in jail; that tactically it was better for us to have Bryan Brown on the case rather than to have some new attorney who might be more inventive, who might be willing to raise the argument to relitigate those evidentiary motions instead of Mr. Brown."

In reviewing all of Luparello's allegations, we find he has failed his burden of showing he was ineffectively assisted by counsel.

[433]

III

ADMISSION OF LUPARELLO'S HEARSAY STATEMENT

(10) On the day of the homicide, Luparello telephoned Mrs. Hazel Schwulst, the mother-in-law of Mark Martin's very good friend, and stated: "[I have] some Mexicans that are going to take care of Mark Martin." After an extensive hearing, the trial court reversed an earlier ruling and admitted the hearsay statement. Luparello now argues that ruling was improper under the rule of People v. Aranda, supra, 63 Cal.2d 518.

In Aranda the California Supreme Court held a defendant's extrajudicial statement which implicated a codefendant could not be admitted unless the trial court undertook one of several safeguards. (People v. Aranda, supra, 63 Cal.2d at pp. 529-531.) Here, however, Luparello is the declarant of the statement and in this capacity, the protections of Aranda do not apply. If this problem does arise it is Orduna, the arguably implicated nondeclarant, who is entitled to Aranda protections (and this he so argues). As to Luparello, the statement constitutes a party admission and is excepted from the hearsay bar by Evidence Code section 1220 which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...." Thus, the admission of the hearsay statement against Luparello was proper.

IV

INSTRUCTIONAL ERROR

(11) The prosecution alleged two overt acts to support the conspiracy to commit an assault charge against Luparello. Luparello argues each act, in itself, was sufficient to support the charge, and since the trial court failed to instruct^[3] the jury to agree unanimously on one specific act, his conspiracy conviction should now be reversed.

While it is clear a trial court does have a duty to instruct sua sponte on general principles of law relevant to issues raised by the evidence (People [434] v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal. Rptr. 436, 650 P.2d 311]), the duty Luparello seeks to impose does not arise from the present facts. Indeed, case law holds the jury charge here was quite adequate. (People v. Skelton (1980) 109 Cal. App.3d 691, 715-717 [167 Cal. Rptr. 636].)

The court instructed that Luparello's meeting with Orduna and several other unnamed parties on May 13 to solicit their assistance in finding Ed and Terri Gadzinski constituted the first overt act and the second was the shooting of Mark Martin on May 14 (pursuant to the above conspiracy). Luparello argues that by coupling each overt act with other evidence two separate conspiracies are revealed, one occurring on May 13 and the other on May 14. Consequently, further instruction on whether one or two conspiracies were formed was required. He also argues that without greater explication, the instructions run afoul of the rule in People v. Diedrich (1982) 31 Cal.3d 263, 280-281 [182 Cal. Rptr. 354, 643 P.2d 971], which requires the jury to agree unanimously on a single, specific act as the basis for a particular conviction.

Luparello's hypothesis is unfounded. The evidence shows Luparello wanted to find Terri "at any cost," he solicited assistance from Orduna and Salmon, he paid $40 and promised more, he went to Mark Martin's house with Orduna and Salmon who carried deadly weapons, and he failed in his first attempt. Undaunted, Luparello called Hazel Schwulst the next day, again seeking information regarding Terri's whereabouts and stating he had some Mexicans who would take care of Martin. Several hours later Orduna, under pretense, led the victim to his death. The evidence thus shows a continuous conspiratorial effort that was simply thwarted in its first attempt to reach its goal. The evidence does not reveal two distinct conspiracies, as Luparello argues, but a number of distinct acts arising from "one overall agreement" and forming a continuous course of conspiratorial conduct. (See People v. Skelton, supra, 109 Cal. App.3d at p. 718.)

In any event, the special instructions requested by Luparello are not warranted in the present case. In People v. Skelton, supra, 109 Cal. App.3d 691, this court, faced precisely with the issue now raised by Luparello, determined a special instruction requiring jury unanimity on an overt act furthering a conspiracy need not be given when a jury is instructed in the language of CALJIC Nos. 6.10 and 17.50. CALJIC No. 6.10 defines conspiracy and provides: "In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the information...." CALJIC No. 17.50 is a concluding instruction which in part provides: "In order to reach a verdict all 12 jurors must agree to the decision and to any finding you have been instructed to include in your [435] verdict." After reviewing the instructions in Skelton, we concluded: "These most specific instructions [No. 6.10] must be viewed in conjunction with the unqualified requirements that proof be made beyond a reasonable doubt as to each element of an offense and that the verdict be unanimous. There is no inadequacy in the instruction given...." (Id. at p. 717.) Here as in Skelton, CALJIC Nos. 6.10 and 17.50 were given. And again as in Skelton, we find instruction on conspiracy to be proper and complete.^[4] Thus, given the proffered instructions here, the trial court had no duty to provide further instruction sua sponte. (See People v. Mota (1981) 115 Cal. App.3d 227, 232-233 [171 Cal. Rptr. 212].)

V

CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES

(12a) The trial court charged the jury with several different theories by which Luparello's guilt for first degree murder could be affixed; among these were conspiracy and aiding and abetting. On appeal, Luparello faults the application of the complicity theories in two ways. First, he maintains conspiratorial liability, as charged to the jury, violates the principle of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580].

In Ireland, the Supreme Court held felony-murder instruction was improper "when it is based upon a felony [in that case assault with a deadly weapon] which is an integral part of the homicide...." (Id. at p. 539.) In reaching its result, the high court reasoned: "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law...." (Ibid.)

Luparello concedes a felony-murder instruction was not given in the present case and the precise Ireland holding consequently does not apply. He asserts, however, the conspiracy instruction given here, that is, CALJIC No. 6.11, is the functional equivalent of the felony-murder instruction in Ireland and similarly allows improper "bootstrapping." We disagree.

[436] Luparello specifically points to the language of CALJIC No. 6.11^[5] which provides: "Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan...." From this he reasons the jury, so instructed, could have found him guilty of first degree murder without any proof of malice notwithstanding he did not commit the homicide nor intend its commission. This, he concludes, replicates the error in Ireland.

While the Ireland court did fault the second degree murder finding there absent some consideration of malice, it did so because of the illogic of applying the felony-murder rule to those circumstances. The same failing does not apply here. (13) The felony-murder rule's purpose is to deter felons from killing negligently or accidentally. (People v. Satchell (1971) 6 Cal.3d 28, 34 [98 Cal. Rptr. 33, 489 P.2d 1361]; People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130]; People v. Summers (1983) 147 Cal. App.3d 180, 188 [195 Cal. Rptr. 21] (conc. opn. of Wiener, J.).) Theoretically, this end is achieved by holding would-be felons strictly responsible for all killings they commit during the perpetration, or attempted perpetration, of any statutorily enumerated felony. (People v. Washington, supra, 62 Cal.2d at p. 781.) While arguably accepting the rule's purpose, our courts have nevertheless consistently stated felony murder is a "highly artificial concept" which "deserves no extension beyond its required application." (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; accord People v. Dillon (1983) 34 Cal.3d 441, 463 [194 Cal. Rptr. 390, 668 P.2d 697].) The rule is seen as "unnecessary" in almost all cases in which it was applied and, indeed, has been viewed as ending "the relation between criminal liability and moral culpability." (People v. Washington, supra, at p. 783.) Thus, for example, where the underlying felonious conduct is not independent of an assault which results in death, that is, where it merges with the homicide, our courts have consistently ruled the killing was outside the felony-murder rule. (See, e.g., People v. Smith (1984) 35 Cal.3d 798 [201 Cal. Rptr. 311, 678 P.2d 886]; People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847]; People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22].) In [437] California, then, the felony-murder doctrine is judicially disfavored and restrictedly applied.

(12b) In contrast, the policy supporting conspiratorial liability receives neither the disfavor nor restriction which adhere to the felony-murder rule. That a conspirator is criminally liable for acts done in furtherance and as a reasonable consequence of a conspiracy is so well settled and accepted in California jurisprudence, citation to that proposition is burdensome rather than illuminating. An early and oft-cited statement of conspiratorial liability is found in People v. Kauffman (1907) 152 Cal. 331 [92 P. 861]: "`The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. Even if the common design is unlawful, and if one member of the party departs from the original design as agreed upon by all of the members, and does an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the natural or legitimate consequence of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.'" (Id. at p. 334.) (14a) The law, thus stated, implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. As recognized in People v. Welch (1928) 89 Cal. App. 18 [264 P. 324]: "Unquestionably, the purpose of the law in making it an offense to conspire to commit a crime is to reach everyone who in any way participated in forming the evil plan irrespective of who or how many carry out the design, and well may this be a protection to society, for a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law." (Id. at p. 22.) (12c) Thus, coconspirators, bound in criminal combination, are mutually bound to a punishment dictated by their conspiratorial efforts. Viewed in this light, the bridge between punishment and moral culpability, so illusory or, upon scrutiny, evanescent under the felony-murder rule, stands here on much firmer ground. So too, deterrence, while absent when the underlying felony merges under the felony-murder doctrine, is clearly present under [438] the accepted theory of conspiratorial liability. (14b) In combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in "planning poorly," each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy. (15) Moreover, our criminal code recognizes and, indeed, reinforces conspiracy's independent threat by identifying it as a separate and distinct crime which never merges with the resulting substantive offense.^[6] (§ 182; People v. Williams (1980) 101 Cal. App.3d 711, 721 [161 Cal. Rptr. 830].) In sum, the logical and legal impediments to criminal liability found in Ireland and its progeny have little or no dissuasive value here in limiting conspiratorial liability for the natural and reasonable consequences of a conspiracy. This being so, we find no obstacle in applying the well-accepted rule of liability to hold Luparello criminally responsible for Martin's murder.^[7]

Luparello next attacks the theoretical underpinnings of conspiratorial and aiding-and-abetting liability, and specifically argues the murder here was the unplanned and unintended act of a coconspirator and therefore not chargeable to Luparello under either complicity theory.^[8]

(16) Luparello first faults both theories for "imposing" the mens rea of the perpetrator upon him. As Luparello views it, both theories work to presume conclusively the accomplice shares the perpetrator's intent and thereby runs afoul of Sandstrom v. Montana (1979) 442 U.S. 510 [61 [439] L.Ed.2d 39, 99 S.Ct. 2450]. In Sandstrom, the trial court instructed the jury that the law presumed a person intends the ordinary consequences of his voluntary acts. The Supreme Court reasoned the jurors, so instructed, "... could reasonably have concluded that they were directed to find against the defendant on the element of intent. The State was thus not forced to prove `beyond a reasonable doubt ... every fact necessary to constitute the crime ... charged,'...." (Id. at p. 523 [61 L.Ed.2d at pp. 50-51].) The instruction was thus held constitutionally defective and violative of the defendant's due process rights. (Id. at pp. 522-523 [61 L.Ed.2d at p. 50].) Here, however, neither the conspiracy nor the aiding and abetting instructions recite the flawed presumption found in Sandstrom, nor do they present some equivalent of that presumption. Indeed, Luparello errs when he concludes the perpetrator and accomplice must "share" an identical intent to be found criminally responsible for the same crime. Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 349, fn. 51 [hereafter cited as Complicity Doctrine].) This equivalence is found in intentionally encouraging or assisting or influencing the nefarious act. "[B]y intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party. The intention to further the acts of another, which creates liability under criminal law, may be understood as equivalent to manifesting consent to liability under the civil law." (Complicity Doctrine, supra, at pp. 354-355; see generally Robinson, Imputed Criminal Liability (1984) 93 Yale L.J. 609.) Thus, to be a principal to a crime, the conspirator need only intend to agree or conspire and to commit the offense which is the object of the conspiracy (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal. Rptr. 516, 524 P.2d 1300]); while the aider and abettor must intend to commit the offense or to encourage or facilitate its commission (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318]). Liability is extended to reach the actual, rather than the planned or "intended" crime, committed on the policy conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. And it is precisely this policy which Luparello next challenges.

As previously discussed, Luparello maintains neither complicity theory can, in logic, predicate a murder charge against him on the unintended act of a coconspirator and, as applied in this case, are therefore theoretically infirm. Professor Sandford Kadish recently examined this argument in his thoughtful and provocative article, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (Complicity Doctrine, supra, 73 Cal.L.Rev. 323). In Professor Kadish's schema, two distinct doctrines coexist to affix [440] criminal responsibility: causation and complicity. Causation links blame to the actor for those physical events which, once put in motion, relentlessly collide with one another, eventually resulting in demonstrable harm. Complicity doctrine, on the other hand, affixes liability derivatively, charging a secondary party, that is, a coconspirator or an aider and abettor, with the criminal act of the principal whom the secondary party has intentionally and knowingly influenced or assisted. Thus, acts done in furtherance of a conspiracy or assisted or facilitated by an aider and abettor present no obstacles to affixing liability under the respective complicity theories. So understood, complicity doctrine works to attach liability only when the secondary actor has intended his influence or assistance. (Id. at pp. 346-348.) The unintended consequence is beyond the scope of this theory. Nor, as Professor Kadish opines, can causation doctrine reach a principal's unintended acts to attach liability to the accomplice who neither intended nor anticipated the ultimate criminal act. As Professor Kadish explains: "We regard a person's acts as the products of his choice, not as an inevitable, natural result of a chain of events. Therefore, antecedent events do not cause a person to act in the same way that they cause things to happen, and neither do the antecedent acts of others. To treat the acts of others as causing a person's actions (in the physical sense of cause) would be inconsistent with the premise on which we hold a person responsible." (Id. at p. 333.) Thus, the uncaused nature of a principal's volitional act impairs, if not precludes, a causative explanation for accomplice liability for the natural, probable and reasonable, though unintended, consequences of the conspiracy or the aided and abetted crime. (Id. at pp. 398-403.)

While we do not dispute the metaphysics of Professor Kadish's conclusion, we question whether, in a real world sense, the choices of an intentionally influenced conspirator or aided and abetted principal are so wholly volitional the prime mover should escape moral blame and criminal culpability.^[9] Indeed, in circumstances like the well-orchestrated, assisted and funded criminal plot undertaken by Luparello, we think not. As one commentator explained: "[T]he concept of agency explains a great deal about why we feel justified in punishing an accomplice as if she were the perpetrator. Perhaps, however, our feelings may be described better in terms of `forfeited personal identity.' Ordinarily a person is held criminally responsible for his [441] own actions. However, when an accomplice chooses to become a part of the criminal activity of another, she says in essence, `your acts are my acts,' and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by `agency' doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual. Thus, moral distinctions between parties are rendered irrelevant. We pretend the accomplice is no more than an incorporeal shadow." (Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111, fn. omitted.) Professor Kadish himself noted: "It is apparent that the grip of the conception that a voluntary human action bars assigning causal responsibility to an earlier actor, pervasive as it is in the law, is loosened by the pull of the policy holding people liable for recklessly providing others with an occasion to do harm...." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 402.) (17a) The California Supreme Court implicitly recognized this "pull of policy" in the recent case of People v. Croy, supra, 41 Cal.3d 1: "The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.... [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury...." (Id. at p. 12, fn. 5, citations omitted, italics added.)

Adopting the reasoning of the Supreme Court, we find the conspiracy and aiding and abetting theories proffered here do not suffer the theoretical infirmities of which Luparello complains. In the circumstances of this case, each provides a sound basis to derive Luparello's criminal responsibility for first degree murder.

Luparello relies upon People v. Garewal (1985) 173 Cal. App.3d 285 [218 Cal. Rptr. 690], and People v. Henderson (1985) 163 Cal. App.3d 1001 [209 [442] Cal. Rptr. 883], to dissuade us from this conclusion. Neither, however, does so. In Garewal, the trial court modified the standard conspiracy instruction, CALJIC No. 6.11, to extend conspirator responsibility to the probable and natural consequence of the conspiracy "`... even though it was not intended as a part of the original plan, or was even actually forbidden as part of the original agreement ....'" (People v. Garewal, supra, at p. 299.) After reviewing both the principles and the criticisms of derivative responsibility in the conspiracy and aiding and abetting contexts, the court determined the modified instruction erroneously and unjustifiably extended conspirator liability. Concluding its updated analysis, the appellate court returned to historical roots: "[W]e conclude the clear thrust of Beeman is to contain the reach of vicarious criminal responsibility of conspirators to the natural and reasonable consequences of the conspiracy." (Id. at p. 302.) Though we have taken a different path, we concur with the conclusion of Division Three of this court. Finally, Henderson does not even reach the question of derivative liability for, under an erroneous aiding and abetting instruction, it could not be determined whether the defendant in that case acted with a specific intent to commit or facilitate the commission of the charged crime.

VI

SUFFICIENCY OF THE EVIDENCE

Luparello contends the evidence is insufficient to support (1) his criminal liability on either conspiracy or aiding and abetting theories and (2) his conviction for first degree murder. In support of his second contention, Luparello argues there is no evidence he premeditated or deliberated the killing of the victim. Luparello's liability, however, is affixed as a principal under both conspiracy and aiding and abetting theories. Luparello concedes Orduna, his coconspirator and aided and abetted colleague, was convicted of first-degree murder for killing while lying in wait (§ 189). Also, as is discussed below, sufficient evidence supports Orduna's conviction for premeditated and deliberate murder. Proof of Luparello's own premeditation and deliberation is therefore unnecessary if the evidence supports his derivative criminal liability for Orduna's acts. We thus review the evidence supporting the conspiracy and aiding and abetting theories.

(18) As previously discussed, a conspirator is criminally liable for the act of a coconspirator which follows as a probable and natural consequence of the common design, even though it was not intended as a part of the original design or common plan. (People v. Kauffman, supra, 152 Cal. at p. 334; People v. Martin (1983) 150 Cal. App.3d 148, 164 [197 Cal. Rptr. 655]; In re Darrell T. (1979) 90 Cal. App.3d 325, 334 [153 Cal. Rptr. 261].) [443] "The question of what constitutes a natural and probable consequence is one of fact for the jury." (People v. Martin, supra, at p. 164.) (19a) Here the object of the conspiracy was to garner information regarding the whereabouts of Terri and Ed Gadzinski by any means necessary, including assault.^[10] Luparello specifically targeted Mark Martin for he believed Martin had contacted Ed Gadzinski or, at least, knew where he was residing. He solicited Orduna and Salmon's assistance in extracting information, forcefully if necessary, from Martin and paid them for their efforts. Luparello accompanied them on an abortive trip to confront Martin. He was aware Orduna and Salmon carried deadly weapons with them at that time. Luparello had also told them he wanted the information "at any cost." The following day Luparello told Hazel Schwulst he had some Mexicans who were going to take care of Mark Martin, and he met with Orduna and Salmon several hours before the shooting. He was again aware they were carrying deadly weapons. That a homicide resulted from a planned interrogation undertaken "at any cost" by armed men confronting an unwilling source is unquestionably the natural and probable consequence of that plan. The evidence thus supports Luparello's liability for the conspiratorial acts.

Luparello insists killing the victim was inconsistent with the conspiratorial goal of obtaining information regarding Terri's whereabouts and therefore could not be a natural and probable consequence of the conspiracy. While this reasoning is appealing, Luparello's overall conduct belies the conclusion he reaches. Luparello's effort to gain information was concerted, and the enlisting of Orduna and Salmon to interrogate and "thump" a would-be informer was not the only avenue of inquiry he pursued. Indeed, he contacted the police and relentlessly pursued Ed and Terri's friends and relatives for information. When his efforts went unrewarded and his frustrations mounted, Luparello's threats and intimidations became more pointed. His statement regarding Mexicans who were going to take care of the would-be victim is such an example. In this context, Martin's eventual killing may be seen as yet one more escalation of Luparello's desire to gain information "at any cost." While Martin obviously provided no information here, his death was a warning to those who had not yet assisted Luparello that they should. While, in retrospect, Martin's death may be seen as an unproductive means to learn of Terri's whereabouts, it is not inconsistent with that goal.

In examining the sufficiency of the evidence in the present case, we are guided by the appellate court's resolution of this same issue in People v. King (1938) 30 Cal. App.2d 185 [85 P.2d 928]. There, on strikingly similar [444] facts, the Court of Appeal determined an unplanned murder was the natural and probable consequence of a planned assault. As the court explained: "In the present case there is presented no question of death resulting from the commission of a simple assault.... There is here a death resulting from the use of a deadly weapon which the appellants say they never intended. Such weapon was, however, actually used, and by one who joined with them in the plan to beat up the deceased, which plan they counseled. The question is whether the use of such a deadly weapon upon the [victim] and his resulting death was a natural or probable consequence of the plan or agreement among the actual assailants and the appellants for which the appellants may be held liable, two of them, ... not being present.

"The character of the plan is of great importance. Here, several men set out to beat up another. In the words of [the defendant], he `sent them over to tamp the chief'. Preparations were made for trouble. It was known that he was vigorous and strong. One, at least, prior to setting out on the expedition, equipped himself with a bludgeon. At the scene of the expected trouble others were asked to stand by. Not being able to get at the victim the first day, the majority returned the second day and proceeded to the victim's place of abode aboard ship. They prepared, and were prepared, to meet force with force and to overcome resistance at any cost. The natural and probable consequence of such an undertaking is homicide, and the homicide here committed by one of the conspirators is nothing less than murder. All who combined to commit the unlawful act of violence are equally guilty. The law makes no distinction between them and each is responsible for the act of any other of the party in the prosecution of the original design. All joining in the enterprise are as guilty of murder as the person who actually caused the death. [Citations.]" (Id. at pp. 200-201.)

Luparello relies on People v. Werner (1940) 16 Cal.2d 216 [105 P.2d 927], to argue for a contrary conclusion. His reliance, however, is misplaced. In Werner two of three coconspirators entered a "secret agreement" for the precise purpose of concealing their conduct from the other member of the conspiracy. That member was nonetheless charged with the criminal consequence of the secret agreement. In reversing the uninvolved coconspirator's conviction, the Supreme Court held coconspirator liability would not attach when the act in question was "... the fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design...." (Id. at p. 223.) As the above review of the evidence shows, the killing here was a foreseeable, though as to Luparello a possibly unintended, consequence of the conspiracy. It was not, however, a fresh and independent act of a coconspirator and consequently cannot absolve Luparello from his shared criminal responsibility.

[445] Luparello also challenges the finding of criminal liability under an aiding and abetting theory.^[11] Luparello does not deny he aided and abetted Orduna and Salmon, but instead rejects culpability because he had no knowledge the perpetrator(s) intended to kill the victim. This, however, is not the law. (17b) "[T]he aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged...." (People v. Durham (1969) 70 Cal.2d 171, 181 [74 Cal. Rptr. 262, 449 P.2d 198], italics omitted, citing People v. Villa (1957) 156 Cal. App.2d 128, 134 [318 P.2d 828].) (19b) Applying the above recited facts to this theory, we again find factual support for Luparello's criminal liability: he aided and abetted Orduna and Salmon in the planned confrontation of Mark Martin and the consequential assault naturally and reasonably resulted in Martin's death.

Luparello argues People v. Smith (Cal. App.) and People v. Butts (1965) 236 Cal. App.2d 817 [46 Cal. Rptr. 362], parallel the present facts and compel a finding favorable to him. However, the California Supreme Court granted hearing on Smith on January 27, 1983, vacating the opinion and later transferring the cause for further consideration. (People v. Smith (D004490) hg. granted Jan. 27, 1983 (Crim. 22953) cause trans. to Ct.App. Apr. 24, 1986, for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal. Rptr. 79, 672 P.2d 862] and People v. Garcia (1984) 36 Cal.3d 539 [205 Cal. Rptr. 265, 684 P.2d 826].) This case cannot, therefore, provide the analytical parallels Luparello proposes. In Butts, the Court of Appeal found the alleged aider and abettor had no knowledge of the principal's wrongful purpose. Here, the evidence shows Luparello had knowledge of Orduna and Salmon's planned assault of Mark Martin, but does not clearly reveal his knowledge of the eventual murder. However, this knowledge, in contrast to Luparello's contention, is not necessary. As an aider and abettor, Luparello is responsible for the natural and probable consequences of the acts which he intentionally encourages.

In sum, substantial evidence supports the application of conspiracy and aiding and abetting theories. Luparello's first-degree murder conviction, predicated on the principals' conduct, is thus also substantially supported.^[12]

[446]

VII

CRUEL OR UNUSUAL PUNISHMENT

(20a) In his reply brief, Luparello argues for the first time his sentence constituted cruel or unusual punishment under article I, section 17, of the California Constitution. Primarily relying on People v. Dillon (1983) 34 Cal.3d 441 [194 Cal. Rptr. 390, 668 P.2d 697], he argues his sentence was disproportionate when considering his individual culpability for the crimes. We disagree.

(21) In In re Lynch (1972) 8 Cal.3d 410 [105 Cal. Rptr. 217, 503 P.2d 921], our Supreme Court explicitly held a statutory punishment may be cruel or unusual, and hence violative of the state constitution, if it is grossly disproportionate to the offense for which it is imposed. (Id. at p. 424.) The United States Supreme Court reaffirmed a proportionality standard under the Federal Constitution in Enmund v. Florida (1982) 458 U.S. 782, 788 [73 L.Ed.2d 1140, 1146, 102 S.Ct. 3368]. After acknowledging the Legislature's function in defining crimes and prescribing punishments, the California Supreme Court in Dillon applied the reasoning of the above-cited cases to determine whether, given the circumstances of that case, a first degree murder punishment was "`... so disproportionate to the crime for which it [was] inflicted that it shock[ed] the conscience and offend[ed] fundamental notions of human dignity.'" (People v. Dillon, supra, 34 Cal.3d at p. 478, quoting In re Lynch, supra, 8 Cal.3d at p. 424.)

In Dillon, the defendant was a 17-year-old high school student who, along with six other schoolmates, planned a "rip-off" of marijuana growing in a mountain field. Several of the boys took guns with them to the field; the defendant carried a .22 caliber semi-automatic rifle. The group proceeded in their venture, and the defendant was stationed near the edge of the field. The defendant heard several shots and, believing his friends were being "blown away," became quite alarmed. Thereafter he was confronted by the victim who was carrying the shotgun. The defendant, according to his testimony, "`didn't know what to do'" and "`just pressed the trigger, I was so scared.... I just kept squeezing it, and shots just went off.'" (People v. Dillon, supra, 34 Cal.3d at p. 483.) The victim died several days later. The jury found the defendant guilty as charged. However, they expressed reservation about the harshness of the felony-murder rule and queried whether they could return a second degree murder verdict even though the killing occurred during the attempted robbery. After explicating the salient aspects in the nature of the offense and the offender vis-a-vis proportionate punishment (id. at p. 479), the Supreme Court found the defendant's life imprisonment sentence unconstitutionally excessive and modified the [447] conviction to second degree murder (id. at p. 489). In reaching its conclusion, the Supreme Court was persuaded by the reluctance of the jury to apply the felony-murder rule to the facts of the case, the defendant's immaturity and inability to foresee the risk of harm he was creating, the absence of any other criminal activity in the defendant's background, and the comparatively "petty chastisements" which were meted out to the other youths who participated in the same offenses. (Id. at pp. 487-488; see People v. Laboa (1984) 158 Cal. App.3d 115, 121 [204 Cal. Rptr. 181].)

(20b) While Luparello finds parallels between his circumstances and those of Dillon, we do not. Luparello was not an impetuous adolescent, but a learned and professional man in his mid-30's. Also, his charge arises as a consequence of a conspiracy he orchestrated, not as an application of the felony-murder rule. At all times, Luparello was the prime mover in the conspiracy. He coordinated meetings, gave directions, targeted the victim and paid for his coconspirators' assistance. Indeed, there is no question Luparello masterminded and encouraged the criminal cabal which ultimately resulted in the victim's death. Further, Luparello fails to identify any instance where the sentencing court did other than carefully and individually consider his sentence. We note the probation report did outline Luparello's otherwise nonviolent background, his exemplary behavior during incarceration and his apparent lack of a prior criminal record. Moreover, Luparello was sentenced after the court had thoroughly considered Orduna's individual culpability and just punishment. In stating: "[I]t is my intention to sentence the defendant in this case to the same [sentence] as I sentenced the defendant Orduna, ...", the sentencing court was implicitly finding Luparello as culpable as Orduna and thereby deserving of the same sentence. Thus, on this record we cannot say Luparello's individual culpability was ignored nor that his sentence constituted cruel or unusual punishment.

Having reviewed Luparello's contentions and finding no prejudicial error, we affirm.

ORDUNA'S APPEAL

VIII

PROSECUTORIAL MISCONDUCT, INSTRUCTIONAL ERROR AND CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES

Orduna reasserts Luparello's contentions regarding prosecutor misconduct, instructional error and improperly deriving criminal liability from conspiracy and aiding and abetting theories. We do not restate the arguments [448] here but similarly resolve them adversely to Orduna. Additionally, Orduna cites approximately 10 further instances of alleged misconduct in the pros9ecutor's colloquy. These are, however, bare allegations, stating neither the gravamen nor prejudice arising therefrom. After reviewing each of these allegations, we find no evidence of misconduct and also note Orduna failed to object to over half of these alleged wrongs. (People v. Green, supra, 27 Cal.3d at p. 34.) Further, Orduna argues the prosecutor, in effect, served as an unsworn witness by putting evidence of Orduna's alleged relationship with the F-Troop gang before the jury. In so doing, Orduna contends the prosecutor violated his Sixth Amendment right to confrontation. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal. Rptr. 141, 589 P.2d 396].) Yet, Orduna does not direct us to any particular incident in the record. The other misconduct allegations Orduna invites us to review show the trial court consistently safeguarded Orduna's Sixth Amendment rights by properly sustaining objections and admonishing the jury to limit the use of evidence to the purpose for which it was admitted. In effect, Orduna asks us to speculate about misconduct, and this we cannot do. He has the burden of proving such harm, and on this record has failed to sustain that burden.

IX

DENIAL OF THE MOTION TO SEVER

Orduna contends the trial court improperly denied his motion to sever and outlines five Massie^[13] factors, all allegedly present in this case, which highlight the impropriety of the trial court's ruling. (22) These factors include: "(1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter (People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]; see also Bruton v. United States, 391 U.S. 123) [20 L.Ed.2d 476, 88 S.Ct. 1620]; (2) where there may be prejudicial association with codefendants (People v. Chambers, 231 Cal. App.2d 23, 28-29) [41 Cal. Rptr. 551]; (3) where there may be likely confusion from evidence on multiple counts (People v. Chambers, supra, p. 34); (4) where there may be conflicting defenses (Day v. State, 196 Md. 384, 391 [76 A.2d 729]); and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (United States v. Echeles (7th Cir.1965) 352 F.2d 892, 898.)" (People v. Isenor (1971) 17 Cal. App.3d 324, 331 [94 Cal. Rptr. 746].) We review Orduna's argument on each of these factors.

(23) He first argues Luparello's extrajudicial statement, "[I have] some Mexicans that are going to take care of Mark Martin," is within the ambit [449] of People v. Aranda, supra, 63 Cal.2d 518, and Bruton v. United States, supra, 391 U.S. 123, and its subsequent admission necessitated severance. As previously stated, the Supreme Court in Aranda called for severing a joint trial when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant. (People v. Aranda, supra, at pp. 530-531.) Here, Luparello's statement does not expressly implicate Orduna and should therefore not fall under the Aranda directive. Even assuming the implication in Luparello's statement were explicit, the admission of the statement in the joint trial did not violate the principle of Aranda.

Our courts have long recognized extrajudicial statements within the coconspirators' exception to the hearsay rule are not subject to the Aranda-Bruton rules. (People v. Brawley (1969) 1 Cal.3d 277, 286 [82 Cal. Rptr. 161, 461 P.2d 361].) Evidence Code section 1223 outlines this exception and provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; ..." Luparello's statement was clearly made during the conspiracy and furthered the object of the conspiracy, that is, finding Terri and Ed Gadzinski, by attempting, through Hazel Schwulst's restatement of the threat, to badger and intimidate Mark Martin into revealing the Gadzinskis' whereabouts. Given this factual background, the statement was properly admitted.

(24) Orduna, however, argues the plan to locate the Gadzinskis was lawful and therefore cannot be the object of the conspiracy. He further reasons Luparello's statement thus cannot be said to further the conspiracy's objective and cannot properly be admitted under Evidence Code section 1223. Orduna misapprehends the law. Under our Penal Code and specifically section 182, "[a] criminal conspiracy is an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective." (People v. Fujita, supra, 43 Cal. App.3d at p. 471, italics added.) Thus, the search for the Gadzinskis, though arguably lawful, may indeed be a conspiratorial objective and statements, such as Luparello's, made to further it can be excepted from the hearsay rule.

Orduna mistakenly relies on People v. Williams (1979) 97 Cal. App.3d 382 [158 Cal. Rptr. 778], to argue the conspiratorial objective must be the substantive crime the conspirators plan. In Williams, the defendants sought to apply the statute of limitations rule for determining the termination of a conspiracy to demur to an indictment. This rule, stated in People v. Zamora [450] (1976) 18 Cal.3d 538, 554 [134 Cal. Rptr. 784, 557 P.2d 75], holds a conspiracy terminates upon the completion of its primary object and technically that means the substantive offense which the conspirators agree to commit. Here we are faced with an entirely different issue, and this reasoning, while correct, is inapposite. Thus, we find Luparello's statement was properly admitted, and the admission did not necessitate severance.

For the first time on appeal, Orduna argues the joint trial prejudicially associated him with Luparello, resulted in a confusion of issues, and precluded Luparello from giving exonerating testimony. These arguments, however, are based on sheer speculation. Orduna makes no reference to the record or any offer of proof that would support his contentions. Without a factual basis, we find no merit in his arguments.

(25) Orduna also asserts severance was necessary to preclude conflict between his and Luparello's defenses. Orduna grounds this argument on the exclusion of certain statements made by Salmon which allegedly exonerated Orduna and implicated Luparello. However, the record shows these hearsay statements were presented in the testimony of Salmon's onetime cellmate. Without a more substantial conflict, severance of the joint trial was unwarranted.

Having found no substantial basis for severing the trials, we find the trial court's denial of the motion was proper.

X

JURY BIAS AND INSUFFICIENCY OF EVIDENCE

Orduna recasts the prosecutor's alleged misconduct as having somehow denied him of a fair and impartial jury. Having already determined the prosecutor's conduct has caused no harm, we find no greater merit in its reassertion in a different guise. In summarizing his argument on this point, Orduna stated: "Perhaps the argument can be advanced that absent more concrete proof [of] `jury tampering' or showing that definite prejudicial statements were finally made to the jurors who decided the case, the issue of an impartial jury is not important." We concur with this assessment.

Orduna contends the evidence insufficiently supports his convictions for conspiracy and murder. (26) On appeal, the test is whether substantial [451] evidence supports the conclusion of the trier of fact, and not whether the evidence proves the defendant's guilt beyond a reasonable doubt. (People v. Reyes (1974) 12 Cal.3d 486, 497 [116 Cal. Rptr. 217, 526 P.2d 225].) Reversal is not warranted merely because the facts of the case might be reconciled contrary to the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal. Rptr. 417, 475 P.2d 649].) (27) Here, Orduna met several times with Luparello, agreed to find Terri and Ed Gadzinski "at any cost," received money for his assistance, went while armed with a deadly weapon to Mark Martin's home, hid to avoid discovery while waiting to ambush Martin, returned to Martin's home on the day of the shooting, lured Martin within the shooter's range and was seen by Martin's mother fleeing the scene. Though other evidence may support other inferences, the facts outlined above substantially support the judgment.

XI

CRUEL OR UNUSUAL PUNISHMENT

Adopting the reasoning of Luparello's related assertion, Orduna contends his sentence, too, constituted cruel or unusual punishment. We find this contention patently without substance. After the jury determined Orduna should be penalized to life imprisonment without the possibility of parole, the sentencing court intervened to consider thoroughly Orduna's culpability and contributions to the crimes. After making detailed and thoughtful findings,^[14] the sentencing court struck the special circumstance finding and sentenced Orduna to imprisonment for a term of 25 years to life. Thus, in contrast to Orduna's contention, the sentencing court did consider the circumstances of his crime and accordingly fashioned a just sentence. We find no cruel or unusual punishment on this record.

[452]

DISPOSITION

Judgments affirmed.

Kintner, J.,^[*] concurred.

WIENER, J.

I concur in the majority opinion with the exception of sections V and VI in Luparello's appeal.^[1] As to those issues, I concur in the result reached by the majority under the compulsion of People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318] and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5 [221 Cal. Rptr. 592, 710 P.2d 392]. Those cases require a holding that an aider and abettor or coconspirator is liable not only for those crimes committed by a cofelon which he intended or agreed to facilitate but also for any additional crimes which are "reasonably foreseeable."^[2] The majority, citing Professor Kadish's recent article,^[3] recognize a doctrinal tension in extending accomplice and conspiratorial liability beyond intended acts but conclude, based on Croy, that this principle of extended criminal liability does not suffer from any "theoretical infirmit[y]." (Maj. opn., ante, p. 441.)

The fact that the Supreme Court has announced a principle of law certainly requires that as an intermediate appellate court we follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) This does not mean however, that the announced principle is either logically consistent or theoretically sound. On a prior occasion I expressed my concern with the legal principle at issue. My dissent in People v. Martin (1983) 150 Cal. App.3d 148, 170 [197 Cal. Rptr. 655], written before either Beeman or Croy was decided, failed to attract the attention of a majority of the Supreme Court. I will therefore not repeat [453] my discussion in Martin, which basically stated what I thought the law should be. Instead, I will briefly comment on what I perceive to be the serious incongruities created by the "foreseeable consequence" doctrine.

Professor Kadish argues that the theory underlying accomplice liability does not permit liability to attach to an accomplice or coconspirator for the acts of another unless the accomplice or coconspirator intended such acts. He explains that the "foreseeable consequence" doctrine "would seem to allow holding the accomplice for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions." (73 Cal.L.Rev. at p. 352.)

The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not "lie in wait," Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide? As I explained in my Martin dissent, I find such fortuity of result irrational. So too, apparently, do Professors LaFave and Scott in their treatise on criminal law: "The `natural and probable consequence' rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel." (LaFave & Scott, Handbook on Criminal Law (1972 ed.) p. 516.)

[454] The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which, like California's governing Beeman standard, requires that the accomplice act "with the purpose of promoting or facilitating the commission of the offense, ..." Missing from the Model Penal Code, however, is any reference to the "foreseeable consequence" doctrine. The Comment to the section addresses the issue as follows: "[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. [¶] This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it. ..." (Model Pen. Code & Commentaries, com. 6(b) to § 2.06, pp. 310-311, italics added.) In support of this reasoning the drafters quoted from a conspiracy decision written by Judge Learned Hand: "At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change;...." (United States v. Peoni (2d Cir.1938) 100 F.2d 401, 403.)

In contrast to the majority, which seeks to distinguish the "forseeable consequence" doctrine from the "disfavored" felony-murder rule (see maj. opn., ante, p. 437), I view both as being founded on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law, we need not be terribly concerned that the contemplated crime was far less serious than the crime which actually took place. Consider the following discussion in the Supreme Court's Croy decision: "It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (41 Cal.3d at p. 12, fn. [455] 5, italics added.) Contrast it with the following description of the theoretical basis for the felony-murder rule in LaFave and Scott's treatise: "The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended." (LaFave & Scott, op. cit. supra, at p. 560.)

In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the "foreseeable consequence" doctrine, is inconsistent with the "universal and persistent" notion that criminal punishment must be proportional to the defendant's culpable mental state. (See Morissette v. United States (1952) 342 U.S. 246, 250-251 [96 L.Ed. 288, 293-294, 72 S.Ct. 240].) Justice Mosk's dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal. Rptr. 275, 477 P.2d 131] expressed it well: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination." The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v. Wilbur, 421 U.S. at 697-698 (requirement of proof beyond a reasonable doubt is not `limit[ed] to those facts which, if not proved, would wholly exonerate' the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [61 L.Ed.2d 560, 576-577, 99 S.Ct. 2781].)

By these references I do not mean to suggest that the "foreseeable consequence" doctrine is unconstitutional, although an argument can be made in that regard. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 495-498 [194 Cal. Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C.J.).) Here, however, Luparello has been convicted of first degree murder under circumstances where, in the absence of the "foreseeable consequence" doctrine, he would be guilty at most of involuntary manslaughter. As to the felony-murder rule, the Supreme Court has concluded the rule is a creature of statute, codified by the Legislature in Penal Code section 189 and, as such, must be applied by the courts. (See People v. Dillon, supra, 34 Cal.3d at pp. 450, 472.) No similar impediment appears with respect to the "foreseeable consequence" doctrine. It is purely a creature of judicial interpretation subject [456] to the thoughtful evolution of the common law. As scholars and commentators have consistently concluded, the time for considered reevaluation is long overdue.

The petition of appellant Luparello for review by the Supreme Court was denied February 11, 1987.

[1] All statutory references are to the Penal Code unless otherwise specified.

[2] The court later ruled admission of the informers' statements would violate the defendants' confrontation clause rights established in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal. Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. (See also People v. Leach (1975) 15 Cal.3d 419 [124 Cal. Rptr. 752, 541 P.2d 296]; People v. Coble (1976) 65 Cal. App.3d 187 [135 Cal. Rptr. 199].)

[3] Luparello argues CALJIC Nos. 4.71.5 and 17.01, if given, would have remedied the alleged error. No. 4.71.5 provides: "And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."

CALJIC No. 17.01 similarly provides: "He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."

[4] The California Supreme Court in the recent case of People v. Croy (1985) 41 Cal.3d 1 [221 Cal. Rptr. 592, 710 P.2d 392], noted a jury is not required to make a special finding as to which of several alleged acts constituted the specific overt act underlying a conspiracy conviction. (Id. at p. 17.)

[5] As modified in this case, CALJIC No. 6.11 in its entirety provides: "Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy.

"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act; this instruction does not apply to the special circumstance allegation in this case."

[6] "Unlike the case of a fatal blow struck with malice in which the battery is merged in the murder because it is an integral part of the homicide itself, a conspiracy, in most jurisdictions, is a distinct offense quite apart from the contemplated crime. Because of this fact the notion that a conspiracy is merged in the resulting offense is unsound and has been quite generally rejected in this country...." (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 687-688, fns. omitted.)

[7] In this context Luparello also contends the asserted error is exacerbated by misinstruction on implied malice. He specifically contends CALJIC No. 8.11 "did not inform the jury that it must find that the defendant must harbor an actual appreciation of the risk involved — i.e., a risk of death." We find Luparello misreads this instruction. As given here, CALJIC No. 8.11 provides: "Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness." (Italics added.) The level of subjective awareness required for an implied malice finding are adequately explicated by the instructional language we have italicized. (People v. Poddar (1974) 10 Cal.3d 750, 755-756 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Summers, supra, 147 Cal. App.3d at p. 184.)

[8] For the purpose of this discussion, we will treat conspiracy and aiding and abetting as subspecies of the same general theory of complicity. We are mindful not all commentators would agree with such a categorization (see, Note, Development in the Law — Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 998-999), but find this usage acceptable for the limited inquiry on which we embark.

[9] After recognizing causal responsibility has been extended in tort to reach an actor's conduct which is not wholly volitional, Professor Kadish suggested "the problem of the reach of criminal law is hardly different depending on the volitionality of the primary actor's conduct." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 404, fn. omitted.) To this, he footnoted an apt example: "Consider the case of a police guard who negligently leaves his gun in the open ward of a mental hospital. If an incompetent person uses the gun to kill, the criminal law permits the guard to be held for manslaughter on a causation theory. There is no greater peril to ordinary behavior if the guard is also made liable when a competent visitor uses the gun to kill." (Id. at p. 404, fn. 260.)

[10] As we discuss at section IX, post, it is the conspiratorial pursuit of an otherwise lawful object by unlawful means that makes the combination a crime. (People v. Fujita (1974) 43 Cal. App.3d 454, 471 [117 Cal. Rptr. 757].)

[11] The aiding and abetting instruction given in the present case was modified in accordance with People v. Tewksbury (1976) 15 Cal.3d 953 [127 Cal. Rptr. 135, 544 P.2d 1335], to require proof of a shared criminal intent. Luparello does not challenge the adequacy of this instruction as applied in the present case.

[12] Luparello additionally argued since either the conspiracy or aiding and abetting theories were inaccurately applied and the particular theory on which the jury relied could not be determined, he was entitled to a reversal of his murder conviction. (People v. Green, supra, 27 Cal.3d at p. 69.) However, as we have determined, both theories were appropriately applied to the present facts, and hence Luparello's argument must fail.

[13] People v. Massie (1967) 66 Cal.2d 899 [59 Cal. Rptr. 733, 428 P.2d 869].

[14] Some of the factors considered were outlined in the minute order of the sentencing hearing:

"1. The interests of justice would be better served by life with parole in Carlos Orduna's case.

"2. That the public safety would not require a life sentence without parole.

"3. Defendant Orduna played a minor role in the crime.

"4. The Defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

"5. Lack of significant prior criminal conduct.

"6. That Orduna did not know and had no personal intent to kill the victim and was not personally violent in the homicide.

"7. That Orduna expressed remorse about the killing and was afraid to testify against the actual killer.

"8. Defendant's sister's testimony, his remarks to the doctors and his counsel's approach to defending the case brought more evidence to light which may well aid in the prosecution of the other perpetrators."

[*] Assigned by the Chairperson of the Judicial Council.

[1] Although Orduna makes the same arguments as Luparello, his position is largely undercut by the explicit jury finding that he intentionally killed Mark Martin while lying in wait. Thus his liability need not be based on the fact that Martin's death was a reasonably foreseeable consequence of the conspiracy to assault.

[2] Henceforth I refer to this principle as the "foreseeable consequence" doctrine because that is the terminology used in Croy. I am concerned, however, about how a principle which was originally phrased in terms of "probable and natural consequences" (see People v. Kauffman (1907) 152 Cal. 331, 334 [92 P. 861]) was slightly modified to become the "natural and reasonable consequences" (see Beeman, supra, 35 Cal.3d at p. 560) and has now been saddled with a monicker traditionally associated with theories of expanding tort liability. (See, e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal. Rptr. 448, 539 P.2d 36].) If we were to return to strict interpretation of the "natural and probable" standard, I would argue that liability could not be imposed here on Luparello because it in no sense can be said that Mark Martin's death was the "probable" result of a conspiracy to assault him in order to obtain information.

[3] See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323.

[197] Marcus C. Chamblee, Atlanta, for appellant.

David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, for appellee.

RUFFIN, Chief Judge.

A Douglas County jury found Keith Short guilty of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. In 15 enumerations of error, Short challenges the sufficiency of the evidence, the admission of certain evidence, and the trial court's rulings with respect to various jury charges. We affirm.

1. "`On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the [defendant] no longer enjoys a presumption of innocence.'"^[1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.^[2]

Viewed in this manner, the evidence shows that the victim was in the parking lot of her boyfriend's Douglasville apartment complex around midnight on June 2, 1995. The two planned to drive to Florida that night, and she began moving her luggage from her car to his truck. At that point, two men came around the front of the truck and another approached the victim from behind, placing a gun in her back. The gunman told her to empty her pockets, while the other two searched her car. The glinman then obtained the victim's car keys, gave them to the other men, pushed her into the back seat of her car, and got in with her. The other two men jumped in the front seat, and one drove the car from the apartment complex.

The gunman ordered the victim to place her head between her legs, so she did not see which way the car traveled as it left the complex. At some point during the drive, the gunman began fondling the victim's breasts. He then unzipped his pants and ordered her to perform fellatio. Still held at gunpoint, the victim complied. When the front-seat passenger saw what the gunman was doing, "he started laughing and turned back around."

The gunman next told the victim to pull down her pants, and she did so. He pulled her onto his lap and touched her vagina with his penis. According to the victim, he tried to "enter into [her]," but "could not get all the way in," so he shoved her "on all fours" and "tried to enter [her] from behind." When the victim attempted to escape through the passenger door, the gunman grabbed her and threatened to kill her.

The front-seat passenger stated that "they needed to do something with [the victim]," and the three men exited the car to talk. The gunman then forced the victim into the trunk, and the car began moving. The victim managed to pop the trunk open, jumped out while the car was still moving, ran to a [198] house, and called the police. Although Fulton County officers responded to the home, which apparently was located in Fulton County, the Douglas County Sheriff's Department ultimately investigated the crimes.

Police discovered that, after the incident, a call was placed from the victim's car phone to an apartment complex near Six Flags. The apartment manager reported that she had seen the victim's car the day after the attack, and authorities surrounded the complex. Several officers observed the car driving in the area and approached it in a store parking lot. Keith Short jumped from the front passenger seat and ran. Officers quickly apprehended him and also arrested Short's brother, Robert, who was driving the victim's car.^[3] After further investigation, the police identified William Cunningham as the third individual involved in the attack.

Following his arrest, Short gave a statement to police. He admitted that he, his brother, and Cunningham approached the victim in the Douglasville apartment complex. Short and Robert entered her car, while Cunningham held her outside the car at gunpoint. Cunningham and the victim then got into the car, and Robert drove from the complex. Short further stated that, at one point, he looked in the back seat and saw Cunningham "messing" with the victim, who was naked. According to Short, he told Cunningham "don't do that."

(a) With respect to his rape and aggravated sodomy convictions, Short claims that the State presented insufficient evidence that the crimes occurred in Douglas County. He asserts that the victim did not know where the car was located when these sexual offenses occurred. And although her ordeal began in Douglas County, it ended in Fulton County.

"Venue, like all elements of the State's case, must be proven beyond a reasonable doubt."^[4] Criminal actions generally must be tried in the county where the crime was committed.^[5] But when a crime is committed in transit or in more than one county, Georgia law provides special methods for establishing venue. For example, a crime committed on or immediately adjacent to a boundary line between two counties is considered committed in either county.^[6] Moreover, "in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed."^[7] And under OCGA § 17-2-2(e):

[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.

The evidence shows that the sexual offenses occurred in a moving vehicle that traveled at some point from Douglas County to Fulton County. As Short notes on appeal, Robert told police that, when the car was in Fulton County, he turned around, saw that the victim was naked, and heard Short ask "what are you doing?" Robert further stated that they were "in Atlanta" when he saw Cunningham "behind" the naked victim. Robert also asserted, however, that he did not see Cunningham touch the victim sexually and that the touchings could have occurred earlier. Short told police that the car remained in Douglas County for only "two seconds" after they left the apartment complex. But he stated that he did not "know [his] way around" the area. A sergeant with the Douglas County Sheriff's Department testified that it would be "[i]mpossible" to reach the county line that quickly.

[199] Given the evidence presented, the jury was authorized to conclude beyond a reasonable doubt that the sexual assaults might have been committed either in Douglas County or Fulton County, rendering venue proper in Douglas County.^[8] Furthermore, under OCGA § 17-2-2(e), "venue for a crime involving a vehicle may lie in any county through which the vehicle traveled."^[9] Relying on this provision, the jury could have determined that venue for the sexual offenses, which occurred in a moving car traveling through Douglas County and Fulton County, lay in Douglas County.^[10]

Short argues on appeal that, because the State relied on "exceptions" to the general venue rule, it failed to prove that the crimes occurred in Douglas County, as alleged in the indictment. We disagree. Subsections (b), (e), and (h) of OCGA § 17-2-2 offer methods of establishing venue when the actual location of the crime cannot be determined with certainty.^[11] If the State proves venue in a particular county under those subsections, the crime is considered to have been committed in that county, even if it was committed elsewhere.^[12] And pursuant to the subsections, the State submitted evidence authorizing the jury to find that the sexual offenses occurred in Douglas County.

Citing Moss v. State,^[13] Short also contends that his convictions must be reversed because the indictment failed to state that venue would be proven through OCGA § 17-2-2(b), (e), or (h). Under Moss, the State cannot rely on an exception to the criminal statute of limitation—and thus avoid the bar created by the limitation period — unless it alleges such reliance in the indictment and proves that the exception applies.^[14] The Moss decision, however, has no application here, as this case does not involve an exception to the statute of limitation. Moreover, the State did not try to avoid the venue requirement. It used statutorily authorized methods for proving venue in Douglas County. Short has pointed to no authority requiring the State to allege this reliance in the indictment, and we see no reason to impose such requirement.^[15]

(b) Short also argues that the State did not prove that he participated in the rape and aggravated sodomy, which were committed by Cunningham. He concedes that the evidence, construed favorably to the verdict, demonstrates that he took part in a conspiracy to rob the victim at gunpoint, kidnap her, and hijack her vehicle. He contends, however, that the sexual offenses were not committed in furtherance of the conspiracy and that he did not intentionally aid in their commission.

Under Georgia law, "[a]ll of the participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the conspiracy, and which may be said to be a probable consequence of the conspiracy, even though the particular act may not actually have been a part of the plan."^[16] As noted above, the evidence demonstrated that Short participated in a conspiracy to rob the victim, then kidnap her at gunpoint, place her in the back seat of the car, and drive around Atlanta. Cunningham attempted to rape the victim and ordered her to perform sodomy during the drive. And [200] the evidence — construed favorably to the verdict — shows that Short, who was the front seat passenger, did nothing to stop the assault, instead laughing when he saw Cunningham's conduct.

Although Short now argues that, as a matter of law, the attempted rape and sodomy were neither a part nor a foreseeable consequence of the original plan, we disagree. In our view, a jury could reasonably conclude that sexual assault was a probable consequence of the conspiracy to kidnap the female victim at gunpoint and drive around with her in a vehicle. That Short raised no objection to Cunningham's actions and continued to take part in the kidnapping conspiracy after the sexual assault occurred supports such conclusion.^[17] Accordingly, the evidence sufficiently linked Short to the sexual offenses.^[18]

(c) Finally, Short argues that his rape conviction must be reversed because the State presented no evidence of penetration. "`Although penetration is an essential element of the crime of rape, it may be slight.'"^[19] The victim testified that Cunningham "could not get [his penis] all the way in," was unable to "penetrate [her] entirely," and "did not fully penetrate [her] inside."^[20] On cross-examination, the victim also testified that, to the extent defense counsel concluded from her interview with police that no penetration occurred, counsel "misunderstood" her answers. Given this testimony, the jury could conclude that at least some penetration occurred, authorizing the rape conviction.^[21]

2. Short argues that the trial court erred in admitting his statement to police because it was not freely and voluntarily given. The evidence shows that Short was 16 years old at the time of the offenses. In determining whether a juvenile's custodial statement is free and voluntary, the trial court applies a "totality of the circumstances" test and considers the following factors:

the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement.^[22]

Before admitting Short's statement, the trial court held a Jackson-Denno hearing. Sergeant Jerry Wynn of the Douglas County Sheriff's Department testified, among other things, that he read Short his Miranda rights when Short was arrested, and Short signed a Miranda waiver form before his interview with police the next day. Wynn also informed Short that he had the right to have a parent present during the interview, and Short responded that his mother "wouldn't come" because she was unhappy with his behavior. Wynn nonetheless called Short's mother, who declined to come to the police station, saying that she was "through with [Short]." Short's mother hung up the telephone after telling Short that she was [201] ashamed of him and did not want to see him again. Short then elected to proceed with the interview without his mother present.

Wynn further testified that Short had completed tenth grade at the time of the interview and communicated like an average 16 year old. He did not appear to be mentally deficient, suffering from any disability, or unable to understand the words Wynn used. Wynn explained the charges to Short, but stated that he was not sure whether Short would be charged with the sexual offenses. Short never asked for a lawyer or stated that he did not want to talk to police. According to Wynn, he did not force, threaten, or coerce Short into giving a statement.

Following Wynn's testimony, the trial court found that Short had been advised of his Miranda rights twice, was not lacking in "mental faculties," understood the potential charges that might be brought against him, and knew that he had a right to have his mother present during the interview, but elected to proceed without her. The trial court concluded that, given the totality of the circumstances, Short's statement was free and voluntary.

"On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of [Short's] statement."^[23] The trial court applied the appropriate test, and the evidence supported its factual findings. We thus find no error in the admission of the statement.^[24]

3. The trial court admitted into evidence a post-arrest statement given by Robert, who was tried with Short. After the jury heard the statement, Short asked the trial court to instruct the jury that the statement should only be considered against Robert. The trial judge declined to give a limiting instruction in the middle of trial, but included such instruction in the general jury charge.

Pursuant to Bruton v. United States^[25] and its progeny, "[a] co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant."^[26] Citing this principle, Short claims that the trial court should have given a contemporaneous charge regarding use of Robert's statement. Before trial, however, Short explicitly waived any Bruton arguments that he might have had. Thus, Short waived any claim that Bruton and the Confrontation Clause required a contemporaneous instruction.

Absent a Bruton claim, OCGA § 24-3-52 arguably governs the admissibility of the statement. Under that provision, "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself."^[27] It "is designed to protect a defendant from the hearsay confession of a co-conspirator who does not testify at trial."^[28] At base, therefore, the provision relates to hearsay admissibility.^[29] And we know of no requirement that a trial court give a contemporaneous limiting instruction regarding use of hearsay. Accordingly, this claim of error presents no basis for reversal.^[30]

4. In three enumerations of error, Short alleges that the trial court improperly charged the jury on the venue principles in OCGA § 17-2-2(b), (e), and (h) because the [202] indictment did not inform him that the State planned to use these subsections. In Division 1(a), however, we rejected Short's claim that the State cannot rely on these subsections unless it references them in the indictment. It follows that these enumerations of error lack merit.

5. The trial court charged the jury that, "[a]lthough slight evidence of venue may be sufficient where the fact of venue is not contested, . . . it is a jurisdictional fact and must be proved beyond a reasonable doubt." In Jones v. State,^[31] which was decided five years after the trial in this case, our Supreme Court held that the "slight evidence" exception to the venue requirement has no application "once a plea of not guilty is entered and a defendant is put on trial." Short thus argues that the trial court erroneously included the "slight evidence" language in its charge.

Even if error occurred, however, we find no basis for reversal. It is clear that Short contested venue with respect to the offenses — such as the sexual assaults — that occurred after the car exited the Douglasville apartment complex. His trial counsel questioned the investigating officer about venue, and Short asserted in his statement to police, which the jury heard, that the vehicle left Douglas County moments after the kidnapping. By its own terms, therefore, the "slight evidence" language did not apply to those crimes. Moreover, Short admitted to police that the initial attack, including the kidnapping, hijacking, and armed robbery, occurred at the Douglas County apartment complex. Under these circumstances, it is highly improbable that any alleged error contributed to the verdict, rendering it harmless.^[32]

6. Short argues that the trial court erred in refusing to charge the jury that "the elements of proof that one is a party to a crime, or an accomplice, require proof of common criminal intent." We disagree. The trial court fully charged the jury on the definitions of party to a crime and conspiracy. It further instructed that the State must prove beyond a reasonable doubt that "the defendant knowingly and intentionally participated in or helped in the commission of the crime or was a conspirator in [the crime]." And it charged that intent is an essential element of the crime and must be proven beyond a reasonable doubt. Because the charge taken as a whole was adequate, the trial court did not err in refusing to give the requested charge.^[33]

7. Short contends that the trial court should have instructed jurors that they "will determine both the law and the facts." We have previously found, however, that a trial court does not err in refusing to include this language in its jury charge.^[34]

8. Short also enumerates as error the trial court's refusal to instruct the jury on theft by taking as a lesser included offense of armed robbery. With respect to armed robbery, the indictment charged that Short, Robert, and Cunningham took jewelry from the victim's immediate presence using a gun. The jewelry at issue was in a makeup bag and purse located inside the victim's car.

According to Short, he was entitled to a theft by taking charge because the jury could have determined that the jewelry was not taken from the victim's immediate presence. But "[i]mmediate presence does not mean `within arm's length' or `facing."^[35] And the evidence shows that Short and Robert searched the victim's car for valuables while she was being held outside the vehicle [203] at gunpoint. The victim was then placed in the car and continually held at gunpoint until forcibly placed in the trunk, from which she later escaped. Under these circumstances, we find no evidence that the robbery occurred outside the victim's immediate presence.^[36]

"Where the State's evidence clearly warrants a jury instruction on armed robbery and there is no evidence of the lesser offense of theft by taking, it is not error to refuse to charge the jury as to theft by taking."^[37] Accordingly, the trial court properly refused to give the requested charge.^[38]

9. In three enumerations of error, Short claims that the trial court erred in instructing the jury on crimes not charged in the indictment. The indictment alleged that Short committed kidnapping with bodily injury by "abduct[ing]" the victim, armed robbery by taking jewelry from the "immediate presence" of the victim, and aggravated sodomy by forcing the victim "to perform a sexual act involving the sex organ of the accused and the mouth of [the victim]." According to Short, however, the trial court instructed the jury on other ways to commit these crimes. Specifically, it charged that a person commits kidnapping "when he abducts or steals away any person," armed robbery when he takes property "from the person or the immediate presence of another by use of an offensive weapon," and aggravated sodomy "when he performs or submits to a sexual act involving the sex organs of one person and the mouth or anus of another."^[39]

"Absent a remedial instruction, reversible error occurs if the jury charge recites the statutory definition of a crime (which informs the jury the crime may be committed in various manners) when the indictment alleges that the crime occurred in a specific way."^[40] This is so because, without a curative instruction, a fatal variance may result between the proof at trial and the indictment.^[41] Any such defect, however, is cured where, as here, the trial court provides the indictment to the jury and instructs that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged.^[42] Thus, these claims of error provide no basis for reversal.^[43]

10. During its deliberations, the jury asked the trial court to redefine conspiracy and parties to a crime. The trial court recharged the jury on these concepts, using terminology that differed in some respects from the original charge. Short then asked the trial court to reread the following language from the original charge: "each [conspirator] is responsible for the acts of others only insofar as the same are naturally or necessarily done to further the conspiracy." The trial judge refused, asserting that the recharge adequately covered the principle. Short enumerates this refusal as error.

Although the trial court did not use the language requested by Short, the recharge informed jurors that a conspiracy extends to "collateral acts instant to and growing out of the original purpose [of the conspiracy]." According to the recharge, separate independent acts that are "in no way a part of what the original conspirators agreed to do or any [204] consequence thereof, [are] not a part of the conspiracy." The trial court further stated that "if one participant goes and does something that is expedient to whatever the criminal design is, then that can be [the] responsibility of all."

The trial court's language substantially covered the principle included in Short's requested recharge. Furthermore, the requested recharge was part of the original charge to the jury. Under these circumstances, we find no error.^[44]

Judgment affirmed.

JOHNSON, P.J., and BARNES, J., concur.

[1] Gearin v. State, 255 Ga.App. 329, 330, 565 S.E.2d 540 (2002).

[2] See Pruitt v. State, 279 Ga. 140, 141(1), 611 S.E.2d 47 (2005); Gearin, supra.

[3] The police also arrested Donnie Smith, another passenger in the car, but concluded that he did not participate in the attack.

[4] Tompkins v. State, 278 Ga. 857, 858(1), 607 S.E.2d 891 (2005).

[5] OCGA § 17-2-2(a).

[6] OCGA § 17-2-2(b).

[7] OCGA § 17-2-2(h).

[8] See id.; Hendrix v. State, 242 Ga.App. 678, 679-680(1), 530 S.E.2d 804 (2000); Dillard v. State, 223 Ga.App. 405, 406(2), 477 S.E.2d 674 (1996).

[9] Waldrip v. State, 267 Ga. 739, 749(13), 482 S.E.2d 299 (1997).

[10] See id.; Gearin, supra at 334(3), 565 S.E.2d 540.

[11] See Pruitt, supra at 143(4), 611 S.E.2d 47.

[12] See Gearin, supra.

[13] 220 Ga.App. 150, 469 S.E.2d 325 (1996).

[14] See id.

[15] See Trumpler v. State, 261 Ga.App. 499, 501(3), 583 S.E.2d 184 (2003) (rejecting claim that indictment was insufficient because it alleged that defendant directly committed crime, while State proceeded against him on theory of party to the crime; a party to the crime may be charged with committing the crime, and "[a]lthough the State was required to prove that [the defendant] was a party to the crime[ ] . . . , it was not required to allege [this theory] in the indictment").

[16] Huffman v. State, 257 Ga. 390, 391(2), 359 S.E.2d 910 (1987).

[17] See id. at 392, 359 S.E.2d 910 (fact that defendant consummated drug transaction after discovering that co-conspirator had murdered individual involved in the transaction supported conclusion that "the victim's murder was a probable and foreseeable consequence of the underlying conspiracy to traffic in illegal drugs").

[18] See id. at 392(3), 359 S.E.2d 910 (jury authorized to find that attempted armed robbery, aggravated assault, and attempted kidnapping were probable consequences of drug trafficking conspiracy); Shehee v. State, 167 Ga.App. 542, 543(1), 307 S.E.2d 54 (1983) (armed robbery committed before kidnapping "was naturally or necessarily done pursuant to or in furtherance of the conspiracy to kidnap [the victim]" at gunpoint).

[19] Manning v. State, 259 Ga.App. 794, 797(2), 578 S.E.2d 494 (2003).

[20] (Emphases supplied.)

[21] See id.; Jackson v. State, 157 Ga.App. 604(1), 278 S.E.2d 5 (1981); see also Raymond v. State, 232 Ga.App. 228, 228-229(1), 501 S.E.2d 568 (1998).

[22] (Punctuation omitted.) Brown v. State, 253 Ga.App. 1, 2(1), 557 S.E.2d 464 (2001). See also Henry v. State, 264 Ga. 861, 862(2), 452 S.E.2d 505 (1995).

[23] Henry, supra at 862(2), 452 S.E.2d 505

[24] See McKoon v. State, 266 Ga. 149, 151(2), 465 S.E.2d 272 (1996) ("The absence of a parent is just one of nine factors that this Court considers."); Henry, supra at 862-863, 452 S.E.2d 505; Brown, 253 Ga.App. at 3(1)(d), 557 S.E.2d 464 (2001).

[25] 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

[26] Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998).

[27] OCGA § 24-3-52.

[28] Brown v. State, 266 Ga. 633, 635(2), 469 S.E.2d 186 (1996).

[29] See id.

[30] To the extent OCGA § 24-3-52 also embodies the Confrontation Clause principles discussed in Bruton, Short waived any reliance on those principles prior to trial.

[31] 272 Ga. 900, 900-901, 537 S.E.2d 80 (2000).

[32] See Davis v. State, 279 Ga. 11, 12-13(2), 608 S.E.2d 628 (2005); Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).

[33] See Christopher v. State, 269 Ga. 382, 383(3), 497 S.E.2d 803 (1998) (" `It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given.'").

[34] See Cornwell v. State, 246 Ga.App. 686, 687-688(1), 541 S.E.2d 101 (2000); Drummond v. State, 173 Ga.App. 337, 338(3), 326 S.E.2d 787 (1985) (physical precedent only).

[35] Parker v. State, 244 Ga.App. 419, 425(11), 535 S.E.2d 795 (2000).

[36] See Morgan v. State, 195 Ga.App. 732, 734(1), 394 S.E.2d 639 (1990) ("[T]he concept of immediate presence is broadly construed if the object taken was under the victim's control or responsibility and the victim is not too distant."); Waters v. State, 161 Ga.App. 555, 556, 289 S.E.2d 21 (1982) ("[E]vidence that the victim, while lying in [a] gully, was close enough to the car to hear her assailants talking was sufficient proof that the goods were taken from her presence.").

[37] Parker, supra.

[38] See id. at 425-426, 535 S.E.2d 795.

[39] (Emphasis supplied.)

[40] Green v. State, 240 Ga.App. 377, 379(4), 523 S.E.2d 581 (1999).

[41] See id.

[42] See id. at 379-380, 523 S.E.2d 581; see also Lumpkin v. State, 249 Ga. 834, 836-837(2), 295 S.E.2d 86 (1982) (although trial court instructed jury on several methods of committing theft by receiving stolen property, any prejudice was cured by remedial charge that limited jury's consideration to the specific method alleged in the indictment).

[43] See Green, supra.

[44] See Smith v. State, 243 Ga.App. 331, 333-334(4), 533 S.E.2d 431 (2000); Bryant v. State, 155 Ga.App. 652, 654(3), 271 S.E.2d 904 (1980).

[342] Glenn W. Falk, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Richard Colangelo, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and ALVORD and WEST, Js.

DiPENTIMA, C.J.

The defendant, Jason Gonzalez, appeals from the judgment of conviction,^[1] rendered after a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8^[2] and 53a-55a.^[3] On appeal, the defendant claims that the evidence at trial was insufficient to support [343] the jury's verdict.^[4] Specifically, the defendant argues that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal.^[5] We reverse in part the judgment of the trial court.

Only two witnesses who were at the scene testified at trial. First, Kenny Jackson testified that on the evening of December 25, 2007, he was celebrating Christmas with friends in a third floor apartment located in Building 13 of the Roodner Court housing complex in Norwalk. Jackson and his friends were drinking alcohol, and at approximately 9 or 10 p.m., he went down to the first floor of the building to purchase marijuana and crack cocaine. When Jackson arrived downstairs, he encountered Donald Wilson, the defendant and some women. Jackson testified that he asked the men, "[w]ho's straight?" meaning that he was looking to purchase drugs. Wilson told Jackson that he had drugs to sell. Wilson and Jackson went upstairs to the second floor of the building to conduct the transaction.

On the second floor, the victim was also celebrating Christmas with his family in his mother's apartment. After learning about the drug transaction going on in the hallway, the victim came out of the apartment into the hallway. Jackson testified that the victim then gave Jackson and Wilson a look signifying his disapproval of the transaction. Jackson and Wilson returned downstairs to the first floor. The victim followed them downstairs and gave them another disapproving look. Jackson told Wilson that they should wait until the victim left before conducting the transaction.

Jackson then testified that the victim then began walking toward the front door of the building, followed by Jackson and Wilson. The defendant was in the hallway near the front of the building. As the victim walked out of the building, the defendant said "Merry Christmas." When the victim did not respond, the defendant called him an "asshole." The victim reentered the building and asked the defendant what he had said to him. In an attempt to calm the situation, Jackson told the victim, "[the defendant] didn't say anything to you." The defendant then pulled out a gun and said, "Yeah, I didn't say anything. I didn't say anything to you." The victim grabbed the gun, and he and the defendant began to struggle for control of the weapon. Jackson fled the scene.

The second witness was Frederick Paulk, the victim's brother (Paulk), who testified that he heard gunshots a couple minutes after the victim left the second floor apartment. Paulk exited the apartment and looked over the balcony, where he observed the victim and the defendant struggling. Paulk saw a woman holding the defendant around the waist and telling him to stop. Then, Paulk observed Wilson pointing a gun at the victim. Paulk told Wilson to stop, saying, "[d]on't do it." The defendant and the victim broke loose from each other and the victim fell against a wall. Paulk saw Wilson shoot the victim and then back out of the building, using the defendant as a shield. Paulk did not observe anyone other than Wilson with a [344] gun. Finally, Gerard Petillo, a forensic science examiner, testified that he was unable to determine whether the bullets recovered from the victim's body and from the crime scene were fired from the same firearm. He also testified, however, that one Glock semiautomatic firearm fired the shell casings that were recovered from the scene.

The defendant was arrested and, following a jury trial, he was convicted of manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a-8 and 53a-55a. The court sentenced the defendant for his conviction of criminal possession of a firearm to five years to serve, two years of which was the mandatory minimum. The court sentenced the defendant for his conviction of carrying a pistol without a permit to five years to serve, one year of which was the mandatory minimum. The sentences for the conviction of criminal possession of a firearm and carrying a pistol without a permit were to run consecutively with each other, but concurrently with the manslaughter conviction. The court sentenced the defendant for the manslaughter conviction to a term of forty years to serve, five years of which was the mandatory minimum. Finally, the court imposed a sentence enhancement of five years for the commission of an A, B or C felony with a firearm in violation of General Statutes § 53-202k, which was to run consecutively to the previously imposed sentences. Thus, the court imposed a total effective sentence of forty-five years to serve, ten years of which was the mandatory minimum. This appeal followed.

The defendant claims that the evidence at trial was insufficient to support the jury's verdict of guilty of manslaughter in the first degree with a firearm as an accessory. We agree.

"We begin by setting forth the appropriate standard of review. Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....

"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

"[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [345] upon the evidence.... However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted.) State v. Billie, 123 Conn.App. 690, 695-96, 2 A.3d 1034 (2010).

In order to prove that a defendant is guilty of manslaughter in the first degree with a firearm as an accessory under §§ 53a-8 and 53a-55a, "the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried, or threatened to use a firearm." (Emphasis added.) State v. Gonzalez, 300 Conn. 490, 496, 15 A.3d 1049 (2011). "To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.... Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." (Citation omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn.App. 511, 517, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).

"Since under our law both principals and accessories are treated as principals... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand....

"To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime.... Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it." (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn.App. 474, 484, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

Here, there was insufficient evidence to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson, the principal, in committing manslaughter in the first degree with a firearm. The state argues that the defendant was properly convicted upon sufficient evidence, both direct and circumstantial, and from the "intricate chain of eminently reasonable and logical inferences flowing from the evidence." We [346] disagree. The record is devoid of any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson in the commission of the crime of manslaughter. Moreover, there were no facts before the jury from which it reasonably could have inferred that the defendant engaged in such conduct. The testimony adduced at trial indicated that the defendant pointed a gun at the victim, and the two then began struggling for the weapon. The record contains no evidence, however, as to how the gun came into Wilson's possession, nor any evidence of any conduct by the defendant which reasonably could be interpreted as assisting Wilson.

The state argues that Wilson and the defendant were associated in the drug trade, that the victim was interfering with a drug transaction and that the defendant aided Wilson in shooting the victim by "providing the weapon and introducing it into the situation." First, the only circumstantial evidence suggesting that the defendant was associated in the drug trade with Wilson was that they were together when Wilson told Jackson that he would sell him drugs and that the defendant possessed a gun and pointed it at the victim. The state cites cases reciting the well established correlation between drug dealing and firearms. See, e.g., State v. Cooper, 227 Conn. 417, 426 n. 5, 630 A.2d 1043 (1993). We note, however, that this court has stated that in Cooper and cases like it, guns, or testimony about the presence of guns, were properly admitted into evidence because the evidence was "relevant and material for reasons other than a well established correlation between drug dealing and firearms." (Emphasis added; internal quotation marks omitted.) State v. Mozell, 36 Conn.App. 672, 676, 652 A.2d 1060 (1995); see id., at 677-78, 652 A.2d 1060 (court improperly admitted gun into evidence in absence of any evidence tying gun to alleged conspiracy, but admission was harmless).

Moreover, the defendant's presence near Wilson at the time Jackson inquired about purchasing drugs is insufficient to establish his involvement in the transaction. See, e.g., State v. Fair, 118 Conn.App. 357, 362, 983 A.2d 63 (2009) (defendant's mere presence not enough to support inference of dominion or control for conviction of illegal possession of narcotics, but where other pieces of evidence tie defendant to dominion and control, finder of fact may consider presence and draw inferences from that presence and other circumstances linking defendant to crime); State v. Madison, 116 Conn.App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929, 980 A.2d 916 (2009) (presence in high crime area alone insufficient to establish reasonable and articulable suspicion for purposes of fourth amendment); State v. Rodriguez, 11 Conn.App. 140, 149, 525 A.2d 1384 (1987) (mere fact, without more, that person is associating with or in presence of others who are suspected of criminal activity does not establish probable cause to arrest or search that person).

Although the defendant brandished a gun at the victim, the evidence suggests that this event occurred independently of the drug transaction. There was no evidence that the defendant participated at all in the drug transaction. Jackson testified that the defendant said "Merry Christmas" and the victim did not respond, which angered the defendant, prompting him to call the victim an "asshole." This exchange, in turn, led to the altercation between the defendant and the victim. The evidence suggests that the defendant and Wilson were associated with each other on the night of the shooting, but there is no evidence inviting a reasonable inference that this association was related to the drug trade. State v. Green, 261 Conn. 653, 672-73, [347] 804 A.2d 810 (2002) (evidence insufficient to convict defendant of conspiracy to commit murder where only evidence that could support inference of conspiracy was that defendant and confederates were friends, defendant may have had dispute with victim and defendant and confederates simultaneously shot at victim). Thus, in the absence of any evidence tying the defendant to the drug transaction, we cannot conclude that the evidence was sufficient for the jury to infer that the defendant was associated in the drug trade with Wilson.

Second, the evidence does not support a reasonable inference that the defendant aided Wilson merely by introducing the weapon into the situation. Although the state cites State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000), in support of this argument, that case is inapposite. In Turner, our Supreme Court concluded that there was sufficient evidence to establish that the defendant had the requisite intent to kill the victim, as required for a conviction of murder as an accessory. Id., at 747, 751 A.2d 372. Our Supreme Court stated that the jury reasonably could have found that the defendant aided the principal because on the night of the shooting, the defendant began "dancing around'" on the street corner opposite from the victim. Id., at 749, 751 A.2d 372. Our Supreme Court then stated that the jury reasonably could have concluded that the defendant's unusual behavior was "meant to distract the victim and bystanders while [the principal] approached from behind to shoot the victim." Id. In the present case, the defendant did not provide any assistance to the principal. Although the defendant pointed a gun at the victim and then struggled for control of the weapon, this conduct alone does not support a reasonable inference that he, by so acting, intentionally aided the principal in killing the victim.

In addition, our Supreme Court in Turner stated that the jury reasonably could have inferred that the defendant gave the principal the weapon used in the shooting. A witness testified in Turner that the shooter used a weapon of the same type that had been in the defendant's possession a week before the shooting. Id., at 749-50, 751 A.2d 372. Here, the gun that the defendant pointed at the victim was the same gun that Wilson used to shoot the victim. There is no evidence, however, that would support a reasonable inference that the defendant gave the weapon to Wilson. Unlike in Turner, where the defendant gave the principal the weapon in advance of the crime, in this case the most the evidence suggests is that Wilson acquired the weapon in the midst of the struggle between the victim and the defendant. See State v. Green, supra, 261 Conn. at 671-73, 804 A.2d 810; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987) (evidence insufficient to sustain conviction of felony murder where no witness claimed to have seen defendant commit any crime, no knife was recovered from defendant and no proceeds of underlying robbery were discovered on defendant); compare State v. Foster, 202 Conn. 520, 536, 522 A.2d 277 (1987) (evidence sufficient to convict defendant of criminally negligent homicide as accessory where defendant intentionally aided principal by giving him knife); State v. Harris, 49 Conn.App. 121, 131-32, 714 A.2d 12 (1998) (evidence sufficient to sustain conviction of manslaughter as accessory where defendant was gang leader, defendant gave weapon to gang member and directed him to shoot victim). Thus, we conclude that there was insufficient evidence that the defendant intentionally aided Wilson in shooting the victim.

We recognize that "it does not diminish the probative force of the evidence [348] that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Na'im B., 288 Conn. 290, 296, 952 A.2d 755 (2008). "The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Emphasis added; internal quotation marks omitted.) State v. Coleman, 304 Conn. 161, 169, 37 A.3d 713 (2012). Applying this rule, we conclude that the jury could not have inferred reasonably and logically that there was sufficient evidence to convict the defendant of manslaughter in the first degree with a firearm as an accessory.^[6]

The judgment is reversed with respect to the defendant's conviction of manslaughter in the first degree with a firearm as an accessory and with respect to the sentence enhancement pursuant to § 53-202k, and the case is remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

[1] The defendant also was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The defendant does not challenge his conviction of these counts on appeal.

[2] General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."

[3] General Statutes § 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm...."

General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person...."

[4] The defendant also claims that prosecutorial impropriety in closing argument deprived him of a fair trial. Because we conclude that the evidence was insufficient to support the jury's verdict, we do not address this claim.

[5] The defendant also argues that there was insufficient evidence that he intended to cause serious physical injury to the victim. Because we conclude that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal, we do not address this claim.

[6] We note that because we must reverse the defendant's conviction of manslaughter, we must also vacate the sentence enhancement which the court imposed pursuant to § 53-202k, because the defendant's conviction of criminal possession of a firearm in violation of § 53a-217, a class D felony, and carrying a pistol without a permit in violation of § 29-35(a), do not constitute A, B or C felonies as required by § 53-202k.

Gary Howell, Columbia, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Cecil H. Ross, Asst. Atty. Gen., Criminal Justice Div., Nashville, Mike Bottoms, Dist. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., Columbia, for appellee.

OPINION

SUMMERS, Judge.

The Circuit Court at Maury County entered a jury verdict finding Donna Maxey^[1] guilty of the crime of the rape of a child pursuant to T.C.A. § 39-11-402 (1991) and T.C.A. § 39-13-522 (Supp. 1994). The court imposed a sentence of fifteen years. Pursuant to T.R.A.P. 3(b) Maxey has appealed and presents the following issues:

For the reasons stated herein, we reverse the jury verdict and dismiss the charge against Maxey.

In a separate case, Todd Hampton pled guilty to simple rape of the victim in this appeal, a twelve year old female. The state indicted Maxey, the victim's former aunt, charging her with rape of a child, contending that she was responsible for Hampton's crime. The jury convicted Maxey and she has appealed, arguing that the evidence is [757] insufficient to support a finding that she intended that Hampton rape the victim.

The facts basic to this appeal are undisputed. On the evening of the offense, the victim's mother reluctantly gave the victim permission to spend the night with Maxey at Maxey's stepfather's house. Maxey and the victim went to Maxey's stepfather's house for approximately twenty minutes and then went to Maxey's sister's trailer. Todd Hampton, twenty years old, and Dale Adcock, Maxey's nephew, were at the trailer. Maxey brought a half gallon of whiskey into the trailer and Hampton, Adcock, Maxey, and the victim began drinking. After two or three drinks, the victim became drunk and got sick. Maxey and apparently Hampton and Adcock drove the victim around the block in an attempt to sober her up by exposing her to fresh air. In a further attempt to sober up the victim, they placed her in a cold shower. After borrowing some clothes from Hampton, the victim went into the back bedroom of the trailer and went to sleep. Maxey and Adcock apparently continued drinking in the living room. The victim testified that when she woke up, Hampton was having sexual intercourse with her. The victim further testified that she told Hampton to get off of her and he did. Hampton testified that he went to the bedroom first, that the victim followed him into the bedroom; and they had consensual sexual relations. Hampton entered into a plea agreement with the state wherein he pled guilty to simple rape and testified at the trial of Maxey.

T.C.A. § 39-11-402 reads in pertinent part:

On appeal, Maxey contends that there is insufficient evidence to support the jury's verdict that she "intended" that Hampton rape the victim. T.C.A. § 39-11-402(2) requires proof of intent to promote or assist the commission of the offense. Subsection (3) requires intent to benefit in the proceeds or results of the offense or intent to promote or assist the commission of the offense. T.C.A. § 39-11-302(a) (1991) states that a person acts intentionally with respect to the nature of conduct or to a result of conduct when it is a person's conscious objective or desire to engage in the conduct or cause the result. The Sentencing Commission Comments to this definition explain that "[i]ntentional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur." The plain terms of T.C.A. § 39-11-402(2), (3) indicate that proof of negligence or recklessness does not suffice to make a person criminally liable. The intent required by these subsections is demanding. It is necessary that the defendant "in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree." Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976). The defendant must "knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime." State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).

When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Our review of the record reveals the following evidence on the intent issue. Maxey provided the victim with alcohol and placed her in the situation where she [758] was raped. Maxey attempted on two occasions to sober up the victim. When the victim told Hampton that she was sixteen, Maxey indicated to the contrary to Hampton by smiling and shaking her head negatively. Maxey told Hampton that the victim liked him. After the victim went to the bedroom, Maxey asked Adcock to go into the back bedroom and check on the victim. Adcock testified that he returned and told Maxey that the victim and Hampton were having sex. There is no evidence that Maxey took any action at this time. This being the extent of the evidence, we conclude that it is insufficient to establish that Maxey intended that Hampton rape the victim.

The state concedes that no Tennessee court has ever held that a person who merely exposes another to an unreasonable risk of criminal attack by a third party has intended that attack. The state further concedes that a review of the record indicates that there was virtually no evidence having any tendency to show that Maxey knew that Hampton intended to rape the victim and that there was no evidence that could support a reasonable jury verdict in finding beyond a reasonable doubt that she intended such a result. Accordingly, we reverse the jury verdict and dismiss the charge against Maxey.

In light of our resolution of the first issue on appeal, it is unnecessary that we address the remaining two issues. We feel compelled, however, to comment on a portion of the trial court's jury instructions which is as follows:

As heretofore stated, the defendant is charged in the indictment with the offense of rape of a child. Any person who commits the offense of a rape of a child is guilty of a felony. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements. (1) that Larry Todd Hampton had unlawful sexual penetration of the alleged victim or the alleged victim had unlawful sexual penetration of Larry Todd Hampton, and (2) that the alleged victim was less than thirteen years of age, and (3) that the defendant acted intentionally, knowingly, or recklessly.

On appeal, Maxey argues that the use of the word "recklessly" in the third portion of the instructions impermissibly misled the jury as to the mens rea necessary for conviction under T.C.A. § 39-11-402 authorizing criminal liability for the conduct of another. We agree. As we discussed supra, this statute requires a mens rea of intent. Evidence of a mens rea of recklessness is insufficient to support a conviction under this statute. A preferable instruction in these circumstances would have provided as follows: (3) that the defendant acted with the necessary intent to be criminally responsible for the offense committed by another.

Reversed and dismissed. Costs assessed to the state.

WADE and WELLES, JJ., concur.

[1] The defendant's name in the indictment appears as Maxie. Everywhere else in the record, it appears as Maxey.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

[113] Mr. William F. Waugh for petitioners.

[115] MR. JUSTICE STONE delivered the opinion of the Court.

This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825; 18 U.S.C., § 397 et seq.). Petitioners, a man and a woman, not then husband and [116] wife, were indicted in the District Court for Northern Illinois, for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that in each instance the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants, and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F. (2d) 617, on the authority of United States v. Holte, 236 U.S. 140.

The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the Court said (p. 144):

"As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like [117] this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged."

The Court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the Court put (p. 145):

"Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim."

In the present case we must apply the law to the evidence; the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.

First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.

[118] Section 2 of the Mann Act^[1] (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose . .." Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.

The Act does not punish the woman for transporting herself; it contemplates two persons — one to transport and [119] the woman or girl to be transported. For the woman to fall within the ban of the statute she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,^[2] any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 Fed. 28; cf. United States v. Farrar, 281 U.S. 624, 634. The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation. So it was intimated in United States v. Holte, supra, and this conclusion is not disputed by the Government here, which contends only that the conspiracy charge will lie though the woman could not commit the substantive offense.

Second. We come thus to the main question in the case, whether, admitting that the woman, by consenting, has [120] not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C, § 88), punishes a conspiracy by two or more persons "to commit any offense against the United States." The offense which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened § 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.^[3]

As was said in the Holte case (p. 144), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone.^[4] Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.^[5] [121] For it is the collective planning of criminal conduct at which the statute aims. The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal, Clune v. United States, 159 U.S. 590, 595. And one may plan that others shall do what he cannot do himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87.

But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged.

Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently [122] with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, Shannon and Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390; cf. State v. Law, 189 Iowa 910; 179 N.W. 145; see State ex rel. Durner v. Huegin, 110 Wis. 189, 243; 85 N.W. 1046, or under the federal statute.^[6] See United States v. Katz, 271 U.S. 354, 355; Norris v. United States, 34 F. (2d) 839, 841, reversed on other grounds, 281 U.S. 619; United States v. Dietrich, 126 Fed. 664, 667. But criminal transportation under the Mann Act may be effected without the woman's consent, as in cases of intimidation or force (with which we are not now concerned). We assume therefore, for present purposes, as was suggested in the Holte case, supra, 145, that the decisions last mentioned do not in all strictness apply.^[7] We do not rest [123] our decision upon the theory of those cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 Fed. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.

It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, compare In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. Compare Queen v. Tyrrell, [1894] 1 Q.B. 710. The principle, determinative of this case, is the same.

On the evidence before us the woman petitioner has not violated the Mann Act and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be

Reversed.

MR. JUSTICE CARDOZO concurs in the result.

[1] "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."

[2] Sec. 3 of the Act (18 U.S.C., § 399), directed toward the persuasion, inducement, enticement or coercion of the prohibited transportation, also includes specifically those who "aid or assist" in the inducement or the transportation. Yet it is obvious that those words were not intended to reach the woman who, by yielding to persuasion, assists in her own transportation.

[3] Sec. 30, Act of March 2, 1867 (14 Stat. 471, 484) "except for an omitted not relevant provision, . . . has continued from that time to this, in almost precisely its present form." See United States v. Gradwell, 243 U.S. 476, 481.

[4] The requirement of the statute that the object of the conspiracy be an offense against the United States, necessarily statutory, United States v. Hudson, 7 Cranch 32, avoids the question much litigated at common law (see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed. 1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the Criminality of combining to do an act which any one may lawfully do alone.

[5] So it has been held repeatedly that one not a bankrupt may be held guilty under § 37 of conspiring that a bankrupt shall conceal property from his trustee (Bankruptcy Act § 29[b], 11 U.S.C., § 52). Tapack v. United States, 220 Fed. 445, certiorari denied 238 U.S. 627; Jollit v. United States, 285 Fed. 209, certiorari denied 261 U.S. 624; Israel v. United States, 3 F. (2d) 743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U.S. 582. And see United States v. Rabinowich, 238 U.S. 78, 86, 87. These cases proceed upon the theory (see United States v. Rabinowich, supra, 86) that only a bankrupt may commit the substantive offense though we do not intimate that others might not be held as principals under Criminal Code, § 332 (18 U.S.C., § 550). Cf. Barron v. United States, 5 F. (2d) 799.

In like manner Chadwick v. United States, 141 Fed. 225, sustained the conviction of one not an officer of a national bank for conspiring with an officer to commit a crime which only he could commit. And see United States v. Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.

[6] The rule was applied in United States v. N.Y.C. & H.R.R. Co., 146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following cases it was recognized and held inapplicable for the reason that the substantive crime could be committed by a single individual. Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisansky v. United States, 31 F. (2d) 846, certiorari denied 279 U.S. 873. The conspiracy was also deemed criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O'Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q.B.D. 420.

[7] It should be noted that there are many cases not constituting "a serious and substantially continued group scheme for cooperative law breaking" which may well fall within the recommendation of the 1925 conference of senior circuit judges that the conspiracy indictment be adopted "only after a careful conclusion that the public interest so requires." Att'y Gen. Rep. 1925, pp. 5, 6.

[473] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Plaintiff and Appellant.

[474] Jay Plotkin, under appointment by the Court of Appeal, Patrick Coleman, Apple & Dobrin and Irving D. Apple for Defendants and Respondents.

FLEMING, J.

In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.

On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and "about as safe as you can get." It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.

On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said "his business was taking messages."

On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.

On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come [475] to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't "arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them." In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.

Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.

[1] To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?

The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two [476] cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.

In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.

In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a `stake in the venture' which, even if it may not be essential, is not irrelevant to the question of conspiracy." (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)

While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. [2] Both the element of knowledge of the illegal use of the [477] goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.

[3] Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.

[4] The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal. Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. [5] But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.

In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of [478] his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.

In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.

[6] 1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £ 3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.

In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.

[7] 2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal. App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.

In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Fraine, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to apprentices [479] so that it was impossible for him to have been ignorant of the real intent of the transaction.

In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.

Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.

However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.

[8] 3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found [480] significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.

No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.

Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.

Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [(C.C.A. 6) [3 All Eng. 200, 123 J.P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. [9] It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to [481] pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.

Logically, the same reasoning could be extended to crimes of every description. [10] Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, § 38; 18 U.S.C. § 2382.) [11] In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) [12] But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen's arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: "Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; [482] misprision of treason is punishable with imprisonment for life.... No offence is committed in failing to disclose a misdemeanour....

"`To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion.'" (Criminal Law, Glanville Williams (2d ed.) p. 423.)

[13] With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all cases of felony knowledge of criminal use alone may justify an inference of the supplier's intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.

[14] From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.

[15] When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from [483] which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.

In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.

The order is affirmed.

Herndon, J., concurred.

Roth, P.J., concurred in the judgment.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Jacob W. Friedman argued the cause and filed a brief for petitioner.

Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General [441] Perlman, Assistant Attorney General Campbell, John R. Benney, Robert S. Erdahl and Joseph M. Howard.

MR. JUSTICE BLACK delivered the opinion of the Court.

A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.

The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.

"She asked me, she says, `You didn't talk yet?' And I says, `No.' And she says, `Well, don't,' she says, `until we get you a lawyer.' And then she says, `Be very careful what you say.' And I can't put it in exact words. But she said, `It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it.'"

[442] The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made — the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.^[1]

It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible [443] on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15 F.2d 740, 743.

Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.

We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been [444] scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief.^[2] But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.

It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless [445] under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.

Reversed.

MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.

This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."^[1] The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in [446] addition thereto,^[2] suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.

The modern crime of conspiracy is so vague that it almost defies definition.^[3] Despite certain elementary and [447] essential elements,^[4] it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.^[5] It is always "predominantly [448] mental in composition" because it consists primarily of a meeting of minds and an intent.^[6]

The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.^[7]

But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a [449] lone wrongdoer.^[8] It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade (see 145 F.2d 76 for details) and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.

Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.^[9] The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.^[10]

[450] Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.^[11]

Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."^[12] In fact, we are advised that "The modern crime of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the court of Star Chamber."^[13] The doctrine does not commend itself to jurists of civil-law countries,^[14] despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates.^[15]

[451] A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.

Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.^[16] This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction.^[17] The National Labor Relations Act found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert.^[18] But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.

The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind [452] only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, "To require a greater showing would cripple the Act," United States v. Griffith, 334 U.S. 100, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. "It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . ." United States v. Masonite Corp., 316 U.S. 265, 275. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.

Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.

An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.^[19] The Government may, and often [453] does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497.

When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.

The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where [454] the Government institutes mass trials.^[20] Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices." Caminetti v. United States, 242 U.S. 470, 495.

A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.^[21]

Against this inadequately sketched background, I think the decision of this case in the court below introduced [455] an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the co-conspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows:

". . . We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continues, at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673. . . . While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it."

I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy [456] by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.

It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.

Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.

I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the [457] United States and that every federal prosecution must be sustained by statutory authority.^[22] No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress.^[23] And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.

There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.

Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice [458] can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.

MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.

MR. JUSTICE BURTON, dissenting.

While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.

In speaking of harmless errors that may result from the admission of evidence, this Court has said:

"Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269^[*] to questions of the admission of cumulative evidence." Kotteakos v. United States, 328 U.S. 750, 763.

[459] Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is —

"what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .

.....

"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." Id. at pp. 764-765.

The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.

[1] The Florida grand jury failed to indict and the cases there were closed without prosecution in February, 1942. The New York indictments were not returned until January, 1943.

[2] Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677; People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918; Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145; State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756; Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347; Watson v. State, 166 Miss. 194, 213, 146 So. 122, 127; Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222; State v. Strait, 279 S.W. 109 (Mo.).

[1] The phrase is Judge Cardozo's — The Nature of the Judicial Process, p. 51.

[2] The Conference of Senior Circuit Judges, presided over by Chief Justice Taft, in 1925 reported:

"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.

"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.

Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.

[3] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624: "In the long category of crimes there is none, not excepting criminal attempt, more difficult to confine within the boundaries of definitive statement than conspiracy."

An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."

[4] Justice Holmes supplied an oversimplified working definition in United States v. Kissel, 218 U.S. 601, 608: "A conspiracy is a partnership in criminal purposes." This was recently restated "A conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 644. The latter is inaccurate, since concert in criminal purposes, rather than concert in crime, establishes the conspiracy.

Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.

[5] See, for example:

8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.

[6] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624, 632.

[7] See Senturia, Conspiracy, Political, IV Encyc. Soc. Sci. 238 (1931).

On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.

[8] 8 Holdsworth, History of English Law, 383. Miller, Criminal Law, p. 110.

[9] 18 U.S.C.A. § 371. Until recently, the punishment for such a felony could have been far in excess of that provided for the substantive offense. However, the Act of June 25, 1948, c. 645, 62 Stat. 683, 701, provides that in such a case the punishment for the conspiracy shall not exceed the maximum provided for such misdemeanor.

[10] This is the federal law applicable to antitrust prosecutions. For the history of this conception and its perversion, particularly in labor cases, see Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393. On the abuse of conspiracy see O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, and Note, The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 Harv. L. Rev. 276.

[11] This statement, of course, leaves out of account the subject of attempts with which conspiracy is said to be allied. 8 Holdsworth, History of English Law, 382.

[12] Id., 382.

[13] Id., 379.

[14] "It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it. It is a fortunate circumstance that it is not encrusted so deep in our jurisprudence by past decisions of our courts that we are unable to slough it off altogether. It is a doctrine which has proved itself the evil genius of our law wherever it has touched it." Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 427.

[15] Counsel representing the United States, the United Kingdom, the French Republic, and the Soviet Union, and German defendants, indulged in some comparisons of the relevant laws of several nations before the International Military Tribunal at Niirnberg in connection with organizations there accused as criminal. 8 Trial of Major War Criminals (GPO 1947), pp. 353, et seq.; 2 Nazi Conspiracy and Aggression (GPO 1946), p. 1; Jackson, The Nurnberg Case, p. 95.

[16] The Assassination of President Lincoln and the Trial of the Conspirators, New York, 1865. See, however, Ex parte Milligan, 4 Wall. 2.

[17] See Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 403.

[18] International Union, U.A.W.A. v. Wisconsin Employment Relations Board, ante, p. 245.

[19] Hyde v. United States, 225 U.S. 347. Mr. Justice Holmes, on behalf of himself and Justices Hughes, Lurton and Lamar, wrote a vigorous protest which did not hesitate to brand the doctrine as oppressive and as "one of the wrongs that our forefathers meant to prevent." 225 U.S. 347, 387.

[20] An example is afforded by Allen v. United States, 4 F.2d 688. At the height of the prohibition frenzy, seventy-five defendants were tried on charges of conspiracy. A newspaper reporter testified to going to a drinking place where he talked with a woman, behind the bar, whose name he could not give. There was not the slightest identification of her nor showing that she knew or was known by any defendant. But it was held that being back of the bar showed her to be a co-conspirator and, hence, her statements were admissible against all. He was allowed to relate incriminating statements made by her.

[21] For courtroom technique employed in the trial of conspiracy cases by both prosecution and defense, see O'Dougherty, Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn L. Rev. 263. His survey, which accords with our observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.

[22] United States v. Hudson, 7 Cranch 32; United States v. Worrall, 2 Dall. 384; United States v. Coolidge, 1 Wheat. 415; United States v. Eaton, 144 U.S. 677, 687; United States v. Bathgate, 246 U.S. 220, 225. See, however, Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73.

[23] Cf. Tot v. United States, 319 U.S. 463.

[*] Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided:

"SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.

Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:

"RULE 52. HARMLESS ERROR AND PLAIN ERROR.

"(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

[641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.

W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.^[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,^[2] has little vitality in this country.^[3] It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:

"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."

And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.

Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.^[4]

[645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,^[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.^[6]

[646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the [648] scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE RUTLEDGE, dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.

There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

[649] I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;^[1] (2) aiding, abetting or counseling another to commit them;^[2] and (3) conspiracy to commit them.^[3] Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.

The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.

These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.

The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.

I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.^[4] It should be [651] followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.

In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.

But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.

It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.

For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.

What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.^[5]

[654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.

MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

[1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."

The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.

[2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina, 257 N.Y. 84, 89-90, 177 N.E. 317.

[3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.

[4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:

"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.

"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.

But we do not find that practice reflected in this present case.

[5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.

[6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.

[1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.

[2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.

[3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.

[4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.

[5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.