Summary of People v. Swain, S. Ct. CA , 1996 

Facts: A brown van passed through a neighborhood in S. F.  It slowed near a group of boys.  Several shots were fired from the front of the van and Df Chatman and another fired shots from the rear of the van.  The victim, 15, later died.  Swains’ fingerprints were inside the van.  Chatman denied Swain’s presence, and did the van’s owner. Chatman testified he fired several shots after hearing one shot in self defense.

Issue: Where the target offense is 2^nd degree murder, does a conviction of conspiracy to commit murder necessarily require proof of express malice, or can one conspire to commit implied malice murder?

Holding: Express malice.

Procedure: Chatman was guilty of 2^nd degree M and Conspiracy.  Swain guilty of conspiracy and attempt to dissuade witness.  Both appeal.   Affirmed in part, reversed in part.

Rule: Two or more persons conspiring to commit any crime with proof of the commission of some overt act by one or more of the parties, in agreement, in furtherance of the conspiracy.  Conspiracy requires specific intent. Intent to agree and intent to commit the offense.

Ct Rationale: The target offense was 2^nd degree M.  The PL must prove that the actors intended to conspire and they intended to commit each element of the target crime. Unlawful killing of a human being with malice aforethought (either express or implied).   It would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied.  Conspiracy fixes a point of legal intervention at the time of agreement to commit a crime.  The commission of the crime could never be established or complete until a killing actually occurred.

Def A: Conviction for Murder 2^nd degree with implied malice is a crime before a crime occurred.