While I. entirely concur in the opinion of Mr. Justice Clarke, there is one other question raised by an exception *625to the charge which, I think, should he considered, because it is one which may frequently arise in other cases. The indictment named Robin (or the Northern Bank, for whom Robin acted) as the briber, and the defendant as the person bribed. There was no evidence of the alleged bribery except that given by Robin, and no corroboration of his testimony on this point. The court charged distinctly that Robin, the alleged briber, was not an accomplice of Hyde, the person bribed, and consequently that Robin’s testimony needed no corroboration to justify a conviction. This ruling is contrary to the unbroken line of authorities in this State. An accomplice has been defined as follows: “To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime.” (People v. Zucker, 20 App. Div. 363; affd. on opinion below, 154 N. Y. 770.) Certainly in a case of bribery the briber takes part in the crime, and is indeed an essential part of it, for unless there be a briber there can be no bribe, although of course there may be a willingness or even an offer to accept a bribe. In such a case the person to whom the offer is made, if he rejects it, is clearly not an accomplice. In this case, however, the defendant was indicted not for offering to receive a bribe, but for actually receiving one. In People v. Bissert (71 App. Div. 118; affd., no opinion, 172 N. Y. 643) the precise question was involved. The defendant in that case, a police officer, was indicted for accepting a bribe from one Lena Schmitt, the keeper of a disorderly house. The Schmitt woman testified to giving the bribe, and an attempt was made to corroborate her testimony, but, as the court held, without success. The judgment was reversed for the reason, among others, that the defendant had been convicted upon the uncorroborated • evidence of Lena Schmitt, the briber, who was considered to be an accomplice. The court said, speaking of the Schmitt woman: “If she paid to the defendant this sum, for the purpose specified, she was equally guilty with the defendant, because *626she aided and abetted in the commission of the crime. ' She was an accomplice, and, therefore, by the express provisions of the statute (Code Grim. Proc. § 399) the defendant could not be convicted upon her testimony alone.” It is now contended by the district attorney that that case is not authority for what it decides, because, as the record on appeal shows, it was assumed throughout the case by the prosecution as well as the defense that a briber was an accomplice of the person bribed, and the trial court so charged. The force of this objection is no.t altogether apparent. It presumes that all the courts before which the case came carelessly assumed an erroneous rule of law, and that the appellate courts based a reversal'of the judgment upon such assumption. In the prosecution for bribery arising out of the notorious aldermanic scandal with reference to the Broadway railroad franchise, it was universally held that the briber and the bribed were accomplices each to the other, and that their evidence required corroboration to justify a conviction. (People v. McQuade, 110 N. Y. 284, 307; People v. O’Neil, 109 id. 251, 267; People v. Kerr, 6 N. Y. Supp. 674.) In the latter case; Daniels, J., expressly charged the jury that the recipient of a bribe was an accomplice of the briber, and that his testimony must, therefore, be corroborated. To the same effect are People v. Winant (24 Misc. Rep. 361); People v. Acritelli (57 id. 574); People v. Maynard (151 App. Div. 790). It was also the rule of the common law, and is to-day the rule in every State, save one, wherein the question has been considered,' that a briber and the recipient of the bribe are accomplices. (People v. Coffey, 161 Cal. 433, where the question is discussed at length and the authorities collated.) The one apparent exception to the rule is State v. Durnam (73 Minn. 150; 75 N. W. Rep. 1127), in which the court expressly declared that a person giving a bribe was not an accomplice of the person who received it. The question, however, was not involved in the case. The defendant was indicted for asking a bribe, not for receiving one, and the witness who was' claimed to have been an accomplice had not agreed to give a bribe, but had refused to do so. Of course he was. in no sense an accomplice in the crime of asking. It is strenuously urged that the giver of a bribe cannot be deemed an accomplice of the *627person whom he bribes, because the giving and the receiving of a bribe are made by law distinct, although reciprocal crimes. This contention loses much of its force when it is considered that the law was precisely the same as it is now in this respect when the aldermanic bribery cases, above cited, were decided. But in the nature of things, one is or is not an accomplice of another, not because he is or is not indictable for the same or another offense, or by reason of the form of the punishment which the statute has prescribed, but by reason of what he has done, and of the part which he has taken in the commission of the crime, and it would seem, ■under section 2 of the Penal Law, that notwithstanding the giving and the receiving of a bribe are made distinct crimes, yet the giver may be indicted as a principal in the crime of receiving, and vice versa.' (People v. Maynard, 151 App. Div. 790.) The subject was discussed at some length by the Supreme Court of Massachusetts in Commonwealth v. Smith (11 Allen, 243), the question being whether a suborner of perjury was an accessory before the fact of the perjurer. The court said: “The crime of subornation of perjury is clearly in its nature that of an accessory before the fact to the perjury. Both perjury and subornation are felonies under our statute, being punishable by imprisonment in the State prison. * * * Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. * * * And the accessory is a felon, though his felony is different in kind from that of the principal. * * * So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. * * * Wé cannot see that the application of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.”
In People v. Evans (40 N. Y. 1) it was held that the subornation of perjury may not be proved by the uncorroborated
*628testimony of the person suborned, and in People v. Gilhooley (108 App. Div. 234; affd., 187 N. Y. 551) it was assumed that the perjurer was the accomplice of the suborner. The district attorney cites to us a number of cases in which, as he claims, a contrary rule has obtained. Hone of them are cases of bribery, and all of them are clearly distinguishable in principle, except, perhaps, those which hold that a woman who submits to an abortion is not an accomplice of him who performs the operation. In Dunn v. People (29 N. Y. 523) it is said that this apparent exception- to the general rule was adopted because “ the law regards her rather as the victim than the perpetrator of the crime,” and in People v. Vedder (98 N. Y. 630) the court pointed out the fact that the language of section 294 of the Penal Code seemed to be expressly so framed as to exclude the woman from participation as a principal "in the crime of the abortioner, and prescribed a different penalty for her offense, concluding the opinion with the remark: “We regard the proposition as too well settled by authority, and too salutary in practice to be now questioned.”
In People v. McGonegal (136 N. Y. 62) the witness who was claimed to be an accomplice of the abortioner was not the Woman upon whom he operated, but one who had accompanied the victim to the place at which the operation was to be performed. She was not present at the operation and it was not shown that she had aided in or advised it. It was held that she was not an accomplice of the person who performed the operation, although it was intimated that she might have been held as an accomplice of the woman who submitted herself to be operated upon. A receiver of stolen goods is held not to be an accomplice of the thief, because he has had no part in the preparation for or commission of the crime, and, therefore, is neither a principal nor an accessory before the fact, although at common law he might have been considered an accessory after the fact. So a person who plays cards in a gambling house is not guilty of a crime, and is not an accomplice in the crime of keeping a gambling house. (People v. Bright, 203 N. Y. 73.) In that case the defendant was indicted as a “ common gambler.”. The court held that the underlying idea in the definition of this crime is the habitual participation in *629gaming as a money-making pursuit,. and, therefore, that one who upon a single occasion played cards in the defendant’s gaming house could not have been indicted either as a principal or as an accessory before the fact with reference to the particular crime for which the defendant had been indicted. The distinction between this case and that of a briber and one who is bribed is obvious.
I am of the opinion, therefore, both upon principle and authority, that the person who gives a bribe is the accomplice of him who accepts it, and that the charge of the court to the contrary was erroneous.
Clarke and Scott, JJ:, concurred.