I' concur in the result reached by Mr. Justice Bartlett in this, case, viz., that the judgment of conviction should be reversed and a. new trial of the defendant ordered. It was certainly .error to permit witnesses who were called on behalf of the prosecution to-characterize the testimony of -certain of the defendant’s witnesses, as untrue." This error alone is abundantly sufficient to justify a. reversal. I concur, also in the view that on the evidence appearing-in the record before us the defendant could only be convicted of an attempt to commit the crime described in section 87 of the Penal Code instead of the consummated offense, but as I arrive at that-result by a different process of reasoning from that adopted by Mr. Justice Bartlett I will briefly express my opinion on that subject-
The crime stated in the section of the Penal Lode referred to so-far as applicable to this case makes it a felony for any one with, intent to effect or facilitate the escape of a prisoner who is held, under a charge or upon a conviction for felony to convey to a. prisoner any information, whether the escape is effected or attempted or not. The object of the statute is to create the crime of conveying information to the prisoner with the guilty intent of aiding an escape, and the crime is completed- when the information is conveyed to á prisoner with such intent whether the information is or is- not. adequate to either effect or facilitate the escape. The question of the value and efficacy of the information conveyed may he material in determining the intent of the accused, but I do not think that, it is otherwise material. The same section of the Penal Code also-*591declares it to be a crime to send into a prison with like intent any disguise, instrument, weapon or other thing; and I have no doubt that a defendant could be convicted of the completed crime if he sent a key into the prison with the intent of aiding the escape of a prisoner, notwithstanding the key might not fit the prison lock. In this, case the defendant sent to a prisoner named Carroll, who was incarcerated under a charge of felony, a letter containing a secret cipher to be used by the recipient in reading the details of a plot or plan of escape to be subsequently sent to him by the defendant, couched in the disguise of the cipher so communicated. It being established that the letter containing the cipher was sent with the guilty intent of facilitating the escape of some one or more of the prisoners then in the jail, its conveyance to one of those prisoners would constitute the crime described in the statute without the addition of the scheme of escape which it was.designed to decipher. It would be some information essential to the consummation of the guilty purpose, and would, therefore, constitute the precise offense set forth, viz., the conveyance of some — that is, of “ any ” — information with intent to facilitate an escape. The statute prescribes as a constituent part of the crime no element which is lacking in this-case, provided the information has been conveyed to a prisoner. The information is of a character which is calculated to aid the escape, although not complete in itself and although intended to be* supplemented by additional information, and having been conveyed with the felonious intention of effecting or at least of aiding in such result, it seems to me quite clearly to constitute the completed crime.
But I cannot find from the evidence that the defendant ever succeeded in conveying to Carroll the information contained in the letter which he sent, and, therefore, conclude that he was only guilty of an attempt to- do so. The letter was sent by registered mail and was duly delivered at the jail. Carroll receipted for it, but it wass never delivered to him. It was opened by the ¡warden, who, upon finding its purpose and character to be unlawful, took it to the district attorney and delivered it into-the possession of that official.. The warden testified : “ The letter was opened and after I opened it I read it; the opening and reading by me was in the presence of Carroll, and when I finished reading it I took it away with me and immediately gave it to the District Attorney. * * * GarroU *592■never had the letter / I intercepted it. Carroll néver had possession of the envelope ; all he did was to sign this receipt marked exhibit i H.’ He seen the letter, but he didn’t read it. He only saw it in my hand while I read it. The letter carrier delivered it to the . Peeper, who was just on. the stand, and the keeper delivered it to me.”
This case has been tried' by the prosecution upon the theory that the crime charged in the indictment was the sending of information into the prison. There is a material difference in the language of the Penal Code (§ 87) in relation to the sending of information and the sending of a disguise, instrument, weapon, or other like thing. In the latter case it is sufficient if the object is sent into the prison; but as to forbidden information it is necessary that it should be •actually conveyed by the accused to a prisoner; in other words, that it should reach its object through the agency of the accused. In this respect the defendant’s crime failed of accomplishment because the warden seized the letter before its delivery- and the guilt of the defendant then terminated in the abortive attempt. If the information was conveyed to Carroll at all it was . done after-wards by the warden in reading the letter to him or in his presence, but this was without guilty purpose, was subsequent to the \ discovery of the offense committed by the defendant, and cannot be deemed in itself to add to the gravity of the defendant’s transgression, nor-should it be charged against him as a part of the actual commission of his crime.
As there will be another trial of this case it seems important , to call attention to another matter which bears upon the degree of the defendant’s, offense should he be convicted of any charge. It is quite obvious that the statute contemplates that the measure of the defendant’s crime shall be determined by the nature of the charge upon which the prisoner whose escape is sought to- be effected is held in custody or under conviction. If the charge is for a felony lit is made a felony to convey information with intent to effect or facilitate his escape, and a misdemeanor if he be held upon a charge, arrest, commitment or conviction for a misdemeanor. It is practically undisputed in this case that the defendant’s object was not to aid the escape of Carroll, but to aid the escape of two other prisoners then confined in the jail. Referring to them the defendant, *593in the letter which he sent to Carroll, said“ I would like to get •them both out. Well, Bill, this is my idea, I have a scheme by which you can turn them both out.” Then followed a disclosure •of the cipher and the promise of the plan of escape to be sent later •and to be used by Carroll in effecting the escape of the other two. There is no suggestion either in the letter or in the evidence that ■Carroll was to be assisted in escaping, the whole scheme involving, -as I have said, the escape of the other two. Neither is there any •clear proof of the precise nature of the charge against the other two prisoners. The commitments show that they were confined under a charge of violating this same section 87 of the Penal Code, '■and the degree of the charge against them would, therefore, depend in turn upon the gravity of the charge against the prisoner or prisoners whom they were charged with attempting to aid to escape. Attention is called to this fact so that upon the new trial the precise and necessary proof may be made upon this point. As the proof, however, presented in the present record must be regarded in any view as establishing only a frustrated- attempt on the defendant’s part to convey to any prisoner the criminal information against which the statute is aimed, I concur in the conclusion that there should be a reversal and a new trial.
Woodward, Jenks and Hooker, JJ., concurred.
Judgment of conviction reversed and new trial ordered.