People v. Garnett

*366 GAROUTTE, J.

Defendant was convicted of being an accessary to the crime of grand larceny. Section 32 of the Penal Code, under which he was convicted, reads as follows: “All persons who after full knowledge that a felony has been committed conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessaries.”

The aforesaid section is not as plain and explicit as it might he by any means. At the same time the word “conceal,” as here used, means more than a simple withholding of knowledge possessed by a party that a felony has been committed. This concealment necessarily includes the element of some affirmative act upon the part of the person tending to or looking toward the concealment of the commission of the felony. Mere silence after knowledge of its commission is not sufficient to constitute the party an accessary. Again, the word “charged,” as used in the section, means a formal complaint, information or indictment filed against the criminal, or possibly an arrest without warrant might be sufficient. Mere general rumors and common talk that a party has committed a felony is wholly insufficient to fill the measure required by the word “charged.”

Passing the consideration of other matters found in the information, we find it charging that one Lewis committed the crime of grand larceny, and that defendant Garnett “did, after full knowledge that the said felony had been committed as aforesaid, willfully .... then and there conceal said felony from the magistrate, and harbor and protect said Laura Trixie Lewis by aiding and assisting said Laura Trixie Lewis in escaping from the county of Fresno, state of California, and by harboring and concealing said Laura Trixie Lewis from the officers and protecting her from arrest and punishment for the commission of said crime, with the intent and purpose then and there on the part of said Len. Garnett to conceal the crime committed by the said Laura Trixie Lewis from the magistrate, with full knowledge at that time that said Laura Trixie Lewis had committed said crime in the aforesaid manner, and that said crime was a felony.”

We find no allegation in the aforesaid information that Lewis was charged with a felony. Hence, that branch of the informa *367 tion which charges the defendant Garnett with harboring and protecting her amounts to nothing. By reason of the failure to make this allegation all evidence tending to support this branch of the information should have been kept from the jury, and the case tried on the theory alone that the defendant concealed the commission of the felony from the magistrate. Upon the contrary, evidence was submitted upon both branches of the information, and both branches thereof were considered by the jury. This fact is evidenced by the instructions of the court. For these reasons the case must be remanded for a new hearing. It is impossible to say from the verdict but that the defendant was convicted of being an accessary by reason of his harboring and protecting Trixie Lewis.

This case in principle is identical with People v. Mitchell, 92 Cal. 590 , and the reasoning of that case is conclusive here. While there the information was defective in both branches, still the principle discussed and decided has equal force and bearing. We do not deem it necessary to consider the various other questions raised by counsel for appellant.

For the foregoing reasons the judgment and order are reversed and the cause remanded for a new trial.

Van Dyke, J., and Harrison, J., concurred.