delivered the opinion of the court:
The plaintiff in error, hereafter called the defendant, was convicted of buying ores (known to have been stolen) from one Jones. The ore belonged to The Portland Gold Mining Company. Jones was the prosecuting witness, and testified that he was an ore sorter for The Portland Gold Mining Company; that, for a number of months, and at different times, he had stolen high grade ore from that company, and sold it to the defendant, who was an assayer and ore purchaser; that when he made the sales to the defendant, the latter made no inquiry of him as to what mine the ore came from, or who owned it, and that he never saw the defendant make any notation in his books concerning it. The defendant denied that he had ever purchased any stolen ores, or any other ore from the prosecuting witness. He also testified that he had never had any transactions with him of any nature. The testimony of the witness Jones includes the admission that he expected leniency for “squealing,” as he termed it.
The defendant’s refused Instruction No. 2 is to the effect that if the jury found, etc., that any witness who testified *434for the prosecution was an accomplice of the defendant, then and in that case they were instructed to receive such testimony with caution, and regard it with suspicion, and were not to convict upon such evidence, unless it was corroborated by independent evidence, or unless it was clear and convincing, and they could say, after a consideration of all evidence, that they were convinced beyond a reasonable doubt that the defendant was guilty as charged. The defendant’s right to this instruction depends upon whether there was any testimony showing that Jones was. an accomplice; if there was, it correctly states the law in this jurisdiction.
Klink v. The People, 16 Colo. 467, 27 Pac. 1062; Roberts v. The People, 11 Colo. 213, 17 Pac. 637; O’Brien v. The People, 42 Colo. 40, 94 Pac. 284; O’Grady v. The People, 42 Colo. 312, 95 Pac. 346.
The term “accomplice” is defined by Bouvier as follows:
“The term in its fulness includes in its meaning all persons who have been concerned in the commission of a crime, all participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.”
Black, in his law dictionary, defines the term as follows:
“One who is joined or united with another; one of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it. * * * This term includes all the participes criminis, whether considered in strict legal propriety as principals or as accessaries. 1 Buss. Crimes 26. It is generally applied to those who are admitted to give evidence against their fellow criminals.”
In Clark’s Criminal Law, Section 51, it is defined thus,
“The term ‘accomplice’ applies to all who take part in the commission of a crime, whether they are principals or accessaries.”
This rule was recognized by this court in Walt v. The People, 46 Colo. 136, 104 Pac. 89, where, in commenting upon it, at page 144, we said:
“It was such acts that fixed its status as a rendezvous *435for persons disposed to violate the rules of society. For each person presenting himself as a buyer from one knowingly unauthorized to sell, became a participes criminis in the act of selling.”
The converse of this is equally true. A person knowingly selling stolen goods to one unauthorized to buy, is an accomplice of the buyer, because the seller aids and abets in the commission of the crime.
In the light of the authorities cited, it follows that Jones was an accomplice of the defendant, if the crime of buying stolen ores from Jones by the defendant was committed. We agree with the Attorney General that the mere fact that Jones stole these ores from the owner did not make him an accomplice of the defendant; but the theft of ores is one offense, buying them, knowing that they have been stolen, is another. It is a familiar principle of law, however, that one may be both a principal and an accomplice by the doing of separate and distinct acts with the same property. There is nothing which prevents Jones, who stole the ore, from afterwards, by a separate and distinct act, becoming an accomplice of the one who purchased it from him, knowing it to have been stolen. The fact that our statute provides that an accessory shall be deemed and considered a principal and punished accordingly, does not make him any less an accessory, so far as the rules of evidence to be applied to the principle, are concerned. It is rather the fixing of the same punishment for both and an arbitrary declaration that for that purpose upon the commission of a certain crime the perpetrator shall be held to have been guilty of another. This question is thoroughly discussed in People v. Coffey, 161 Calif. 433, wherein, at page 448, the conclusion is as follows:
“This, then, is the true test and rule: If in any crime the participation of an individual has been criminally corrupt he is an accomplice. If it has not been criminally corrupt he is not an accomplice. * * * Where the act requires the co-operation of two persons, and their co*436operation is criminally corrupt, the relationship of accomplice is at once established.”
In this the California court says there is but one exception, viz, State v. Durnam, 75 Minn. 150, which they decline to follow and say that it is unique in the history of the law. According to our view, the defendant was entitled to this instruction. Its refusal necessitates a reversal of the judgment.
In view of a new trial, it is thought advisable to consider one other alleged error. It pertains to the validity of the information. We cannot agree with the defendant that the information was illegally filed. The opinion in Ausmus et al. v. The People, 107 Pac. 204, 19 Ann. Cas. 491, controls this question. The procedure there was the same as here. We deem it unnecessary, at this time, to consider assignments pertaining to the admission of testimony.
The judgment will be reversed and the cause remanded for a new trial.
Reversed.
Decision en banc.
Mr. Justice Garrigues dissents. Mr. Justice Scott not participating.