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Fatigue checks often relate (1) the stress ranges that occur in a component (i.e. a point) as a result of variable loads, and (2) the number of cyclers that the component can undergo while still sustaining a required load-bearing capacity.
Fatigue actions should be determined according to the requirements for fatigue assessment; these are different from the actions for ultimate limit state and serviceability limit state verifications. Fatigue loads and stresses should be calculated at the serviceability limit state level as a result of variable actions only.
Fatigue loads can be determined according to EN 1991 – the fatigue actions in EN 1991 are upper bound values based on evaluations of measurements of load effects, which conform to the rules in Annex A of . If no fatigue model is available in EN 1991, Annex A in  or specific fatigue loading models from National Annexes may be used.
Fatigue loads are most often represented in terms of resulting stress ranges – direct (normal) or shear stresses are most often considered; it is possible to check for fatigue based on principal stress.
Because stresses are often derived from some type of a numerical model, one should distinguish between (1) nominal stress, (2) hot-spot stress, and (3) notch stress ranges.
Nominal stress is stress in the parent material or in a weld adjacent to a potential crack location, calculated in accordance with elastic theory excluding all stress concentration effects.
Nominal stresses are derived from simplified beam models or from coarse FEM models. Stress concentrations resulting from the gross shape of the structure are included in the nominal stress. Nominal stresses may be multiplied by an appropriate stress concentration factor kf to allow for a geometric discontinuity that has not been taken into account in the classification of a particular structural detail (classification is given in Tables 8.1 to 8.10 in ).
Notch stresses are the total stress at a weld toe and include the structural stresses and the stresses due to the presents of welds. FEM analysis with solid elements can be used to calculate the notch stress, although a very fine mesh would be necessary.  does not require the use of notch stress, as notch effects are taken into account indirectly in the experiments.
When fatigue strength is determined according to Table 8.1 to Table 8.10 in , nominal stress ranges should be used in the fatigue verification. Effects producing stress concentrations in details other than those included in Table 8.1 to 8.10 (abrupt changes of section that occur close to the crack initiation site) should be taken into account by using stress concentration factors kf according to §6.3 of . kf values may be taken from handbooks or from appropriate finite element calculations.
Nominal stresses should be calculated at the site of potential fatigue initiation.
For the fatigue verification of welds according to the hot-spot method, local concentration effects (e.g. from the weld profile shape) are taken into account in the detail classification in Table B.1 of .
Combined nominal stresses are verified according to the equivalent stress method according to §8.2 in .
Shear stresses τwf longitudinal to the axis of the weld .
A stress history is the record (or calculation) of the stress variation at a particular point in a structure during a loading event. Stress history at the structural detail under consideration should be determined taking into account relevant influence lines and the effects of dynamic magnification of the structural response.
The simplest way to represent fatigue stresses is the constant-amplitude load fluctuation (see Figure 2). Such load models have been widely used in the past and are still behind many of the contemporary formulations for fatigue design. This kind of simple load history may occur in machinery parts – like in shafts and rods in steady-state rotation.
Figure 2. Constant-amplitude load fluctuation.
A constant-amplitude stress range is described as Δσ = σmax - σmin. Other methods for range description exist that take into account the sign of stresses, but these are not used in EN 1993-1-9:2005.
Stress histories with variable amplitude are more complex. Figure 3a shows a typical example. Often, it is not likely that the same sequence and magnitude of stress ranges recur often, and an analytical representation of the load cannot be defined. Such loads occur on many structures, such as traffic loads on bridges, wave loads on ships and offshore platforms, etc.
A method to handle multiple-amplitude fatigue loads (also recommended by EN 1993-1-9:2005) is explained in the following paragraphs.
A stress spectrum is a histogram that shows the number of occurrences per amplitude of the stress ranges (see Figure 3b). A design stress spectrum is the total of all stress range spectra in the design life of a structure that are relevant to the fatigue assessment. Stress range spectra may be modified by neglecting (1) peak values of stress ranges representing less than 1% of the total damage, and (2) low stress ranges that do not contribute to the overall damage (below the cut-off limit ΔσL, see further).
When using the design spectrum the applied stress ranges Δσi should be multiplied by γFf and the fatigue strength values ΔσC divided by γMf when obtaining the fatigue life Ni (endurance) for each block in the spectrum. γFf is the partial safety factor for fatigue load and its value are provided in 1991-1-1 . A value of γFf = 1.0 is widely accepted in design calculations.
Methods for the derivation of stress range spectra from stress histories are the Rainflow method, the Reservoir method (these are recognised by the EUROCODE, see annex A of  for further information).
Failure occurs when the linear sum of damage for each load level reaches a critical value (equal to 1 in most cases).
This means that the linear damage method has some limitations, in particular assuming sequence independence and assuming independence of damage accumulation.
Figure 3. Scheme of Palmgren-Miner’s rule: a) stress history; b) stress spectrum; c) Δσ-N graph.
is the damage caused by a single cycle at stress range level Δσi. represents the accumulated damage due to ni cycles with stress range amplitude Δσi. A cumulative damage assessment presumes that and that full damage occurs when D reaches 1.0.
Cumulative damage assessment is performed when the maximum stress range due to variable loading is higher than the constant amplitude fatigue limit ΔσD (see further).
EN 1993-1-9:2006 expresses fatigue strength as the intensity of variable stress Δσ (or Δτ) that causes failure after NC = 2 million cycles. The fatigue strength is referred to as “Detail Category” or “Reference value of the fatigue strength” and is designated as ΔσC (or ΔτC).
Values for ΔσC (and ΔτC) are derived based on test results from specimens with various geometry, steel grades and loaded states. These values can be found in Tables 8.1 to 8.10 of EN 1993-1-9:2006 .There, additional requirements/assumptions may be indicated per component type where appropriate – how should the stress range be quantified, whether supplementary requirements should be placed on the detailing and inspection, etc. The tables include informative schemes, where the probable site of crack initiation is also indicated.
Because experimental results were used to derive the fatigue strength, in most cases it is not necessary to increase the stress with concentration factors due to complex joint geometry. The standard stipulates though that nominal stresses should be multiplied by appropriate stress concentration factors kf to allow for geometric discontinuity that has not been taken into account in the classification of a particular constructional detail.
The detail categories in tables 8.1 to 8.10 of  correspond to characteristic fatigue strength. This means that appropriate partial safety factors for material strength γMf should be adopted based on the function and importance of the structure (see Figure 4).
Figure 4. γMf factors for fatigue strength.
The assessment methods included in this calculation form and  apply to all grades of structural steel, stainless steels and unprotected weathering steels except where noted otherwise in the detail category tables. Nevertheless, steel materials should conform to the toughness requirements of EN 1993-1-10. Size effects due to thickness or other dimensional effects may need to be taken into account according to §7.2.2 and Tables 8.1 to 8.10 in .
The fatigue (endurance) limit ΔσD is the maximum stress range that can be repeated an infinite number of times on a test specimen without causing a failure. If all significant stress ranges acting on a component are with uniform amplitude, then the purpose of fatigue design may be to keep the stress due to cyclic loading below that fatigue limit. This structural component can be designed for limited life when the stress range in kept below the fatigue strength ΔσC, or for infinite life when the stress range is kept below the fatigue limit ΔσD.
When variable amplitude loading is applied, the stress ranges lower than the fatigue limit may still cause damage due to the fact that larger amplitude cycles may initiate cracks that will be later propagated by the cycles with lower stress range amplitudes.
To overcome this shortcoming in the Palmgren-Miner’s rule,  adopts a sloped line after the fatigue limit ΔσD, instead of a horizontal line that corresponds to fatigue life of infinite number of cycles. The sloped parts of all fatigue strength curves (for both direct and shear stress) in  end at the cut-off limit ΔσL or ΔτL. Stress ranges in the design spectrum below the cut-off limit (ΔσL) do not contribute to the calculated cumulative damage.
The fatigue life is the period of time predicted to cause fatigue failure under the action of the design spectrum. The total fatigue life, Nσ (or Nτ), is defined as the sum of the number of cycles to initiate a fatigue crack, Ninit, and the number of cycles to propagate a fatigue crack to a critical size, Nprop.
The simplest and most common method for estimating fatigue life is the nominal stress method. It is adopted in EN 1993-1-9:2006, where standard σ-N curves are used in the fatigue assessment per category of structural detail. Fatigue assessment methods other than the σ-N methods as the notch strain method or fracture mechanics methods are not covered by .
Δσ-N curves quantify the relationship between the stress range and number of load cycles to fatigue failure (see Figure 5). Each Δσ-N curve corresponds to a detail class (an assembly or joint type, e.g. longitudinal welds in welded sections, lattice girder node joints, etc.). Δσ-N curves are derived based on experimental investigations – fatigue tests with large specimens, that include effects of geometrical and structural imperfections from material production and execution (e.g. the effects of tolerances and residual stresses from welding). Curves have been collected from several previously available standards, guidelines and technical publications .
When the Δσ-N curves are printed in logarithmic scale (log(Δσ) vs. log(N) or log(Δτ) vs. log(N)) these become bi-linear or tri-linear graphs (see Figure 5).
Figure 5. Fatigue strength curves for a) direct stress ranges; b) shear stress ranges .
A Δσ-N curve describes the behaviour of a typical detail category; each detail category is designated by its fatigue strength ΔσC at 2 million cycles (i.e. NC = 2 x 106 cycles). The values given are in N/mm2 and are rounded. The number of cycles corresponding to the constant amplitude fatigue limit ΔσD is 5 million cycles, i.e. ND =5 x 106. The number of cycles corresponding to the cut-off limit ΔσL is 108 cycles, i.e. NL = 108.
Nominal shear stress ranges Δτ are treated similarly to nominal direct stress ranges - Δτ-N fatigue strength curves are used but using a single slope constant m = 5 (see Figure 5b). These curves are based on representative experimental investigations and thus include the effects of local stress concentrations due to the weld geometry, size and shape of acceptable discontinuities, the stress direction, residual stresses, metallurgical condition, and in some cases, the welding process and post-weld improvement procedures .
On the basic of equivalence of D (damage), the design stress range spectrum may be transformed into any equivalent design stress range spectrum, e.g. a constant amplitude design stress range spectrum ΔσE,2 yielding a fatigue equivalent load associates with a design life of NC = 2x106.
The equivalent constant amplitude stress range ΔσE,2 is defined as the stress range that would result in the same fatigue life as for the spectrum of variable amplitude stress ranges when the comparison is based on the Miner’s summation. The rules for the derivation of ΔσE are given in Annex A of .
A simplified procedure for the determination of equivalent constant amplitude stress ranges is given in §6.2 of , where the use of damage equivalent factors is allowed.
where Δσ(γFfQk) and Δτ(γFfQk) are the design stress ranges caused by the fatigue loads specified in EN 1991; Qk is the characteristic value of the loads according to EN 1991; λi are damage equivalent factors that convert the complex load history to a single amplitude stress range.
Appropriate values for λi should be found in literature – technical publications and brochures, manuals of large machinery that causes dynamic loads in the supporting structure, etc. Where no appropriate data for λi are available, the principles of Annex A of  should be used.
For latticed girders made of hollow sections the modelling may be based on a simplified truss model with pinned connections. Provided that the stresses due to external loading applied to members between joints are taken into account, the effects from secondary moments due to the stiffness of the connection can be taken into account by the use of k1 factors (see Table 4.1 in  for circular sections, and Table 4.2 in  for rectangular sections).
Where is the design value of the stress range calculated with a simplified truss model with pinned joints; k1 is the magnification factor from Table 4.1 and 4.2 in .
The calculation form performs fatigue verifications for heavy gauge steel components according to EN 1993-1-9:2005. Numerous points on the component may be checked using design stress range spectrum that includes up to four significant stress range amplitudes. An assessment of the fatigue life in years is executed, as well as a fatigue verification at equivalent stress ranges.
An infinite number of points on the component can be considered. The form consists of (1) a dialogue, where all input is defined, and (2) a layout window, where the calculation reports are displayed.
The GUI of the dialogue is organized in two tabs – “Detail Category” and “Stress intensity”. On the detail category tab, the safety factors for fatigue strength γMf and for fatigue loading γFf are defined. The detail category for direct and shear stress is defined per point on the component in the first and second tab of the “Detail category (per point)” box.
A few additional options for the calculation are added to this tab. Selecting “Stress verification at 2 million cycles according to §8 of EN 1993-1-9:2005.” specifies whether equivalent constant amplitude stress ranges will be calculated, and fatigue verification in terms of stress will be performed. If the option is switched off, only the design life in number of cycles Nij and years Dj will be calculated.
The following option “Simplified procedure according to §6.2 of EN 1993-1-9:2005.” specifies which method should be used to determine ΔσE,2 and ΔτE,2 – if the option is switched on, input stress will be multiplied by a damage equivalent factor . Values for can be found in literature.
If using this simplified procedure, one should define a single stress range amplitude as the method presumes that one works with a uniform stress range spectrum. If the option is switched off, the method from Annex A in  will be used in the determination of equivalent stress ranges.
Also, there is a possibility to enter k1 factors for the design of lattice girders of hollow sections. To use magnification factors k1 in the design of trusses, switch on the option “Use magnification factors k1 according to table 4.1 and Table 4.2 in EN 1993-1-9:2005”. After setting the option on, a table appears in the third tab of the “Detail category (per point)” box. There, k1 factors may be defined per point on the component.
The second tab “Stress intensity” contains input related to the fatigue load. The number of cycles is defined per stress range amplitude. Only four different amplitudes can be considered simultaneously in this version of the form. After transforming the stress spectrum to design stress spectrum usually a very limited number of stress range amplitudes are left to be considered.
If ‘number of cycles’ for more than four stress range amplitudes are defined, an error message is sent to the user and the calculation is aborted. To consider less than four stress range amplitudes, fill in only the needed rows in the “Number of cycles” table and delete the rest (select the entire row and press the DEL key).
Input direct and shear stress ranges are defined in the following tables of the dialogue. These are defined per point and stress range amplitude. Stress concentration factors are defined on the second tab of the corresponding input table.
If number of cycles are not defined for all four stress range amplitudes (the “Number of cycles” input table contains less than 4 rows), the corresponding columns in the “Direct stress range per point…” and “Shear stress range per point…” tables will be ignored.
Absolute values of the defined input will be taken for number of cycles, stress ranges and stress concentration factors. These quantities only make sense if positive in the implemented design methodology.
The SDF USER application displays calculation reports in the Layout Window. The calculation form for fatigue verification supports three different layouts – a detailed, a standard, and a brief layout. The detailed layout contains a description of all calculation steps, formulas and input parameters included. The standard layout is an informative report of the fatigue verification, where most of the relevant information is presented in a more summarised fashion. The brief layout sums up the design on a single page, although if many points were defined, the brief layout may need to be printed on more pages.
The following pages explain what has been included in the different report layouts.
reference fatigue strength at 2 million cycles ΔσCj/ΔτCj for each point on the component.
design life at each point on the component.
fatigue verification at equivalent stress ranges ΔσE,2j and ΔτE,2j.
Figure 6. Detailed layout (screenshot).
tabulated summary of the input stress spectrum.
Unity check values for direct stress, shear stress and stress interaction.
Figure 7. Standard layout (screenshot).
Fatigue verification at 2 million cycles – unity check values for (1) direct stress, (2) shear stress, and (3) stress interaction.
European committee for standardization, Eurocode 3: Design of steel structures - Part 1-9: Fatigue, Brussels, Belgium, 2005.
Wei Lu and Pentti Mäkeläinen, Advanced Steel Structures – Part 2: Fatigue Design; Research report, Helsinki University of Technology Laboratory of Steel Structures Publications 29, 2003.
European committee for standardization, Eurocode 1: Actions on structures - Part 1-1: General actions - Densities, self-weight, imposed loads for buildings, Brussels, Belgium, 2005.

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The FTC has filed a lawsuit against two companies and their owners who allegedly sent billions of illegal prerecorded calls in violation of the Telemarketing Sales Rule (“TSR”). FTC v. James Christiano, Net.Solutions, Inc., et al. The FTC alleged the company used spoofed called IDs among other violations of the TSR.
The Federal Communications Commission (“FCC”) has made a declaratory ruling and notice of proposed rulemaking regarding toll-free texting. The regulations provide that a text messaging provider may not text enable a toll-free number without obtaining authorization from the subscriber. Such authorization can be revoked at any time.
The Ninth Circuit Court of Appeals has refused to overturn certification of a class of persons who received faxes from Allstate Insurance. Etter v. Allstate Insurance Co. Etter received a single unsolicited fax advertisement which did not contain opt-out notice language and which he did not expressly request. The trial court had ruled that whether a given recipient had consented to the fax could be proved on a class-wide basis, and had therefore certified the class.
A Florida court has refused to dismiss a TCPA class action based on allegedly illegal faxes. The defendant argued that a single fax did not cause sufficient injury for the plaintiff to have standing under the constitution, but the court disagreed. Bobo’s Drugs v. Fagron, Inc.
A Georgia court has ruled that a system which requires human intervention to dial a call is not an automatic telephone dialing system (“ATDS”) under FCC rulings and the D.C. Circuit’s ruling in ACA Int’l v. FCC. Maddox v. CBE Group, Inc. The court noted that the law does not require that a human dial all ten digits. “The focus is on whether the system can automatically dial a phone number, not whether the system makes it easier for a person to dial the number.” The court therefore concluded the system was not an ATDS.
A New Hampshire judge denied a Telephone Consumer Protection Act (“TCPA”) plaintiff’s request to certify a class of fax recipients. Menachem Raitport, et al. v. Harbour Capital Corp. The court adopted the D.C. Circuit’s opinion in Bais Yaakov of Spring Valley v. FCC that solicited faxes do not need to include the TCPA’s disclosures. The judge therefore denied plaintiff’s request to certify the class.
Although New York exempts entities which have a certificate to do business in the state or are incorporated in the state from its telemarketing fees and bonds, it does require registration with no fee for entities which meet that exemption. Recently, state regulators have become more aggressive regarding the no fee registration and information they require to process it.
Comment: If you would like to review your exemption status in New York or other states, please contact me.
A New York court has adopted the D.C. Circuit’s ruling in Bais Yaakov of Spring Valley v. FCC that the FCC could not require disclosures on solicited faxes. The court noted that the D.C. case was a consolidated petition for review and therefore binding on other courts outside the District of Columbia.
A new law has gone into effect in South Carolina that involves the use of local area code numbers and caller IDs. The new requirement prohibits the use of a South Carolina area code to be projected by the caller unless the caller is physically located in the state. The law provides no exemptions. See https://www.scstatehouse.gov/sess122_2017-2018/bills/4628.htm.

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The Spirit of Vengeance is on Agents of SHIELD burning up a body count with hellfire. The new Ghost Rider is Robbie Reyes who drives a flaming 69 Dodge Charger. Besides murdering people by ripping out spines, or burning their very souls into nonexistence, we need to discuss a bigger issue: Reckless driving.
Ghost Rider cruises the streets of Los Angeles in search of the guilty to punish. This quest has included driving in excess of the speed limit, even with Daisy Johnson hanging onto the roof of the car.
Reckless driving under California law is when someone “drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property.” Cal. Veh. Code § 23103(a). If someone who is driving recklessly is the proximate cause of bodily injury to another person, they can be imprisoned in county jail for at least 30 days, but not more than six months. Cal. Veh. Code § 23104(a).
To prove someone committed reckless driving, the State must prove that the defendant “intentionally did something with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts.” People v. Schumacher, 194 Cal. App. 2d 335, 338-39 (1961).
The Ghost Rider drove his Charger with the knowledge that Daisy was on the roof of the car. This would be reckless conduct in disregard for Daisy’s safety. Moreover, Daisy flying off the car, due to the Ghost Rider’s driving, caused Daisy’s injuries. There would be additional charges that could be filed against Robbie, including attempted murder.
The law is silent on reckless driving cases with cars that shoot flames. Many juries would think a car shooting flames would be in willful disregard of the safety of people and property if in a residential neighborhood. Moreover, courts have found that excessive speed, along with time of driving, road conditions, and surrounding circumstances, can demonstrate willful conduct. People v. Nowell, 45 Cal. App. 2d Supp. 811, 812 (1941). As such, a flaming speeding car could be proven to be done in the willful disregard of safety of others.
Ghost Rider’s 1969 Charger likely would fail a SMOG inspection for acceptable emissions standards. Cal. Health & Safety Code § 44012(c). The Charger would definitely fail the visible smoke test. Cal. Health & Safety Code § 44012.1 Moreover, most inspections would refuse to inspect the vehicle, because it is unsafe, causing either burns or eternal damnation. Cal. Health & Safety Code § 44012(i). However, the California DMV website states that gasoline powered vehicles from the year model 1975 or older are exempt from SMOG inspections. The DMV website is silent on whether a car older than 1975 powered by hellfire is also exempt.
Ghost Rider arguably is driving the Charger without a driver’s license in violation of California law. Cal. Veh. Code § 12500(a). Robbie is arguably not driving the vehicle, because he turns into the Ghost Rider, who is a separate entity. If Robbie is someone in control and not an alter ego, there is a strong argument Robbie’s driver’s license could be suspended for road rage. Cal. Veh. Code § 13351.8.
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From the "We the North" campaign that the Toronto Raptors inspired back in the early spring to the successful Pan-Am games held here this summer to the very recent "Blue Jays Mania" that took the city by storm this fall, it is no exaggeration to say that Toronto was swept up in a sports fever this past year. Stadiums were jam-packed and ticket prices were through the roof. Games were attended in record numbers, and for those who recall the 7th inning of Game 5 between the Toronto Blue Jays and the Texas Rangers, you know that passions in the stadium were at near-record highs. Sporting events in general are often associated with throngs of fans (fanatics), fervent emotions, and consumption of alcohol. The interaction of these three factors creates a "perfect storm" that increases the likelihood of spectator injury.
Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.
An injured spectator who has paid for a ticket can potentially sue an occupier for breach of the implied term that the seat sold to him will be safe. In order for the spectator to qualify as acontractual entrant, he must be on the premises for primarily the same reason as was contracted for.
Although plaintiffs may be able to pursue this cause of action, the bulk of actions emerging from injuries to spectators are pursued under the auspices of the Occupiers' Liability Act.
The Occupiers' Liability Act (the "Act") provides that the occupier of a premises owes a duty to take reasonable care for the safety of persons and property entering the premises. According to section 1 of the Act, an occupier is defined to include persons in physical possession of the premises or who are responsible for, or have control over, the condition of the premises, the activities conducted there, or the persons allowed to enter.4 Section 3(2) of the Act clarifies this duty as applying to risks caused not only by the condition of the premises, but also to the activities that take place on or in the premises.
Based on the foregoing, the operator of a sporting event or facility is under a duty to exercise reasonable care in organizing and supervising the event to ensure that both participants and spectators are reasonably safe. The occupier of the premises or the operator of the event or facility thus owes a statutory duty towards spectators that enter the premises.
An action brought by a spectator may target the individual participant, team, league, or other appropriate parties.
A spectator who is injured during the course of a sporting event may commence an action against the occupier of the facility where the sporting event was held. Notably, under the Act, there can be more than one occupier of the same premises. For example, the owner of the premises and the occupier with control of the premises need not be the same party. In such instances, the court will need to look at the specific facts of the case in order to determine liability.7 An action brought by a spectator may target the individual participant, team, league, or other appropriate parties.
The plaintiffs in this case were referees who were injured in attacks launched on them by players at a Junior B Lacrosse match. The attacks took place while on the field of play during the game and later near the locker rooms after the game had ended. The question that the court was tasked with answering was whether the team's duty was limited to the playing field itself, or whether it encompassed the entire arena including the locker rooms where the attack took place.
The trial judge found that the team was only the occupier of the field itself and not the rest of the arena.9 The Ontario Court of Appeal disagreed and extended the team management's duty to include supervision of areas other than the playing field itself. The Court of Appeal found that the broad duty to provide policing and supervision made relatively little sense if the team's obligation concerned only the playing surface. Although the Court of Appeal held that the team's duty extended beyond the playing surface, it ultimately held that the team was not liable for the harm to the plaintiffs, as the events in question were “unexpected” and were not reasonably foreseeable.
In opposition to the motion, the referees' counsel argued that it was unnecessary to add the referees to the action as defendants, as a duty of care was owed to the spectators by the occupier of the land through any employees, agents, contractors, or servants. Essentially, counsel for the referees argued that the occupiers of the land were vicariously liable for the referees' acts and/or omissions. The court did not address this issue on the motion. However, it will be interesting to see how this issue is addressed at trial. The question that potentially emerges from these proceedings is whether an occupier who hires referees for a sporting event is vicariously liable for the referees acts and/or omissions.
...athletes have let their passions get the better of them and have taken out aggression on spectators in the audience.
Aside from issues pertaining to referees' liability, athletes may also find themselves responding to a spectator's claim for injuries sustained during a sporting event. There have been numerous instances where athletes have let their passions get the better of them and have taken out aggression on spectators in the audience.
In one instance, dubbed, “Malice at the Palace”, during a game between the Indiana Pacers and the Detroit Pistons on November 19, 2004, a fight between a few players developed into a brawl between fans, players, and coaches. The Associated Press described it as the most infamous brawl in NBA history.
Similarly, on March 29, 2001, Tie Domi, a Toronto Maple Leafs player, pummelled a fan of the Philadelphia Flyers when that fan fell into the penalty box that Mr. Domi was sitting in.
If similar cases arise in the future, a point of consideration will be whether occupiers of sports fields and arenas will be held vicariously liable for the actions and/or inactions of referees or athletes that result in harm to spectators. Hopefully the trial judge in Madden v. Holy Cross Catholic Secondary School will address this very issue and provide guidance for occupiers and their liability insurers alike.
While it is rare to see a trespassing spectator enter a sports facility, due to the fact entry is usually monitored in a way that makes this difficult, there may be cases where spectators "trespass" or gain entry into certain areas of the sports facility that are purposefully "out of bounds."
In Deyo v. Kingston Speedway Ltd.,15 the plaintiffs paid admission to attend an auto race at the defendant's track. During the race, a car spun out of control and smashed into a guardrail, causing debris to be hurled through the air, which struck the plaintiffs. One of the plaintiffs died instantly and another was seriously injured.
One way in which operators of an event may seek to limit their liability is through the printing of limitation of liability clauses on the entrance ticket to a sporting event. Generally, in order to be able to rely on this exclusion, the language used must be clear, specific, and must somehow be brought to the attention of the spectator. However, in cases that have gone to trial, it does not appear as if defendants have attempted to use such a limitation clause in this context as a defence for claims brought by spectators. As such, there has been little guidance from the courts with respect to the effectiveness of these specific clauses on the backs of sporting event tickets.
This has become known as the "reasonable steps test."
However, the courts have examined the efficacy of waivers in the context of participants in sporting activities. This may shed light on how a defence in a prospective spectator claim might be approached by the courts. Typically, waivers have been found sufficient where the defendant is able to demonstrate that it took all reasonable steps to bring the contractual terms regarding the exclusion of liability to the participant's attention.17 This has become known as the "reasonable steps test."
In Loychuk v. Cougar Mountain Adventures Ltd., the British Columbia Court of Appeal was asked to rule on whether a waiver that released a resort from all liability, including claims arising from the resort's own negligence, was valid.19 This case dealt with a zip-line tour in which the plaintiffs were injured due to the negligence of the resort. The plaintiffs argued, inter alia, that the waiver was not valid at common law because it was unconscionable.
As a risk management tool, all occupiers should adopt and display language that aims to limit any liability for injuries that may befall spectators while on the occupiers' premises. This can be done through several avenues, such as a reproduction of language on the tickets to sporting events and on signage that is reproduced in high traffic areas throughout the premises. It is important to note that whether the language appears on the tickets or on signage, it must be "eye-catching" enough so as to draw the spectator's attention to it. It is likely that "fine print" reproduced on the ticket will not satisfy this requirement.
In Reese v. Coleman, the plaintiff was struck by a snowmobile that went off the track while attending a race for which he paid admission.26 The Saskatchewan Court of Appeal held that the defendant toboggan club was negligent because it did not take any steps to block off the area where the plaintiff spectator was standing, thus allowing the plaintiff to presume that it was safe.
More recently, in Dyke v. British Columbia Amateur Softball Assn., the plaintiff was struck in the head by a foul ball while standing in the spectator's section keeping score.27 The British Columbia Court of Appeal upheld a judgment in favor of the defendant that reiterated that the occupier's duty to spectators is to provide a standard of care based on reasonableness. Furthermore, the Court held that there must be a causal connection between an omission on the part of the occupier, and the plaintiff's injury. Finally, the Court stated that "[i]n sports cases, the reasonable standard of protection for a given location is largely determined by reference to the industry standard."
An occupier may also succeed in defending a plaintiff's claim where it can be shown that the risk of the harm that the plaintiff suffered was not foreseeable.
More recently, in Burns v. Tri-City Wrestling, the court considered a situation where a spectator at a wrestling match, seated just outside the wrestling ring, was injured after one wrestler picked up his opponent and launched him into the audience.29 The wrestler landed on the spectator, crushing him on the floor. The spectator sued the lodge where the match took place. The court ultimately held that this was "not a reasonably foreseeable accident" and that although no warning signs were in place, there was "no evidence that any warning signs or similar steps would have discouraged Mr. Burns from sitting in the front row."
Even if a spectator is able to show that harm was foreseeable, if the occupier can show that sufficient precautions were taken and that the spectator was aware of the inherent risks, then the defendant may still be able to stave off the claim.
In Elliott v. Amphitheatre Ltd., the plaintiff was seated in the front row of the defendant's ice rink watching a hockey game for which he had a paid ticket and was hit by a puck.30 The plaintiff sued the operator of the rink, claiming that it was negligent due to its failure to secure the protection of spectators by installing protective wiring or netting. The Manitoba Court of King's Bench dismissed the action, noting that the defendant was not an insurer against dangers that were incidental to the hockey game. Rather, the defendant must take reasonable steps to ensure the safety of spectators, which it had done.
Spectators at baseball games face a similar risk of being struck by a flying object. In Noonan v. Exhibition Place, the minor plaintiff attended a Blue Jays baseball game with his father at Exhibition Stadium.35 The child was hit by a baseball while seated in a section close to the field, where there was no protective screen. The court held that the occupier, Exhibition Stadium, was not liable, as the plaintiff knowingly and willingly sat in a section that did not offer the same degree of protection as did other areas of the stadium.
On August 21, 2015, a fan attending a game between the Detroit Tigers and the Texas Rangers was hit by a foul ball during the game and sustained severe injuries. Within a day, players had called on the MLB to extend protective netting behind home plate.36 Justin Verlander took the complaint public by tweeting "More protective measures need to be put in place in all parks! Players are sick of seeing injuries that could easily be avoided!"37 Tigers' third baseman Nick Castellanos put it well when he stated that if the tragedy that occurred today "...doesn't get nets up, what is it going to take?"38 The MLB has apparently begun examining ways to increase spectator safety at its 30 stadiums, but no policy changes are expected before the end of the 2015 campaign.39 This is certainly something to keep an eye on going forward.
The legislation and case law clearly stands for the proposition that an occupier is not an insurer that guarantees that its premises will be completely risk-free. Even in cases where the plaintiff has sustained serious injuries, the courts have consistently looked to industry standards in determining whether the occupier has met the reasonableness standard. In cases where the occupier meets this standard, the plaintiff's claim will be dismissed.
Furthermore, the courts tend to take into account factors that are case-specific, such as whether or not the plaintiff knew or ought to have known of the risks associated with a particular sport, as well as the area in which he or she decided to watch the said event.
It is arguable that there are inherent risks with all sporting events. However, at trial, the question becomes whether the risk assumed by the spectator is foreseeable and reasonable in the circumstances. The answer is invariably decided by the facts of the case, as well as expert opinions on the industry standards.
3 Linden,Canadian Tort Law, 5th Ed. (Toronto: Butterworths, 1993) at 618.
4 R.S.O. 1990, c. O.2 as amended, at s.1.
5 Cherniak, Linden, Klar, Kryworuk, ed. by Rainaldi, Remedies in Tort Volume 3 (Toronto: Thomson Reuters Canada Limited, 20`5 - Release 8) at 18-24.1.
6 Kerr v. Loblaws Inc.  OJ No 1921 (Ont. C.A.).
7 R.S.O. 1990, c. O.2, as amended, at s. 1(b).
8 Olinski v. Johnson, 1997 CarswellOnt 1393, 32 OR 3d 653(Ont. C.A.).
9 Olinski v. Johnson  OJ No 2398, 1992 CarswellOnt 4069 (Ont. S.C.J.) at 21.
10 Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773, 2015 CarswellOnt 7670 (Ont. S.C.J.).
12 R.S.O. 1990, c. O.2, as amended, at s. 5(3).
13 R.S.O. 1990, c. O.2, as amended, at s. 3(3).
14 R.S.O. 1990, c. O.2, as amended, at s. 4(1).
16 For pictures of the Kingston Speedway: UrbexPlayground - Abandoned Kingston Speedway.
17 Best v. Deal, 2008 ONCA 26, 2008 CarswellOnt 141(Ont. C.A).
18  O.J. No. 3916 (Ont. S.C.J.) at 20.
19 2012 BCCA 122, 2012 BCJ No 504 (B.C.C.A.).
21 2015 ONSC 2301, 2015 CarswellOnt 6844 (Ont. S.C.J.).
23 Ibid at 50 and 58.
24  809 N.E. 2d 1090, p. 303.
25 Ibid at p. 303.
26  S.J. No. 535, 4 W.W.R. 58 (Sask. C.A.).
27 2008 BCCA 3, 2008 CarswellBC 11 (B.C.C.A.).
28  O.J. No. 515, 1948 CarswellOnt 82.
29 2013 CarswellOnt 2278, 226 A.C.W.S. (3d) 597 (Ont. S.C.J.).
30  3W.W.R. 223 (Man. K.B.).
31 Leigh Augustine, "Who is responsible When Spectators are Injured While Attending Professional Sporting Events?" (2008) Univ. of Den. Sports and Entertainment L. J. at 12.
33 Brett Celedonia, "Flying Objects: Arena Liability for Fan injuries in Hockey and Other Sports" (2008) 15 Sports L.J.115.
34 National Hockey League Official Rules 2014-2014 at 1.

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Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, William B. McKesson, District Attorney, and William H. Low, Deputy District Attorney, for Respondent.
Buono, Murray, Robearge and Thwaits were convicted by a jury in Los Angeles County of conspiracy to commit robbery and of murder; both crimes were fixed as first degree. Defendants were sentenced to life imprisonment for the murder and the term prescribed by law for the conspiracy, sentences to run concurrently. The killing was committed in an attempt to commit a robbery and hence automatically became murder of the first degree. (Pen. Code, § 189.) All defendants appealed. Thwaits' appeal was dismissed pursuant to rule 17(a) and the other appeals are now before us upon a single record. Charged also with former felony convictions, Buono admitted four such convictions, Murray two, Thwaits three, and Robearge three.
The conspiracy had as its objective the robbery of Antonio Mirabile, who lived and was killed in San Diego. The homicide was not part of the plan but was incident to a fight that took place during the attempt to rob the victim. The backbone of the prosecution's case was the testimony of Jeanne Horton, who was one of the conspirators but was not indicted as such, having pleaded guilty to an assault with a deadly weapon made upon Mirabile's nephew, Fillipo Acquaro, who resided with him.
Appellants raise in most instances the same claims of error. The first is want of jurisdiction in the Los Angeles court, the argument being that the conspiracy, if one, was formed and the attempted robbery and murder perpetrated in San Diego County. They also assert error in the court's exclusion of proffered evidence concerning the Sicilian organization known as the Mafia, offered by way of suggestion that the Mafia, rather than defendants, caused Mirabile's death. Much is made of rulings which excluded attempted proof of use of narcotics by Jeanne Horton, the state's principal witness. No claim of insufficiency of evidence is asserted except as it is claimed that the testimony of Horton is inherently improbable and that she, an accomplice, is not adequately corroborated as to the connection of the respective appellants with the commission of the crime.
Arguments concerning overt acts and corroboration of the Horton testimony will be considered first. If there was no [191 Cal. App. 2d 210] overt act in Los Angeles County the court had no jurisdiction to try the defendants for conspiracy; if there was no competently established conspiracy there was no jurisdiction to try appellants in Los Angeles County for the murder which occurred in San Diego County. If Horton was not sufficiently corroborated as to the connection of any of the defendants with the crime of conspiracy, the evidence would not support a conviction as to that defendant.
As developed principally by the testimony of Horton the facts appear to be as follows, assuming, as we must, verity in the evidence favorable to respondent.
The murder occurred about 1 o'clock on the morning of December 27, 1958. Jeanne Horton resided at the Dawn Hotel in Santa Monica, Thwaits in Torrance, Robearge in Manhattan Beach, all of which cities are in Los Angeles County.
Buono and Murray lived at Perris in Riverside County. Mirabile and Acquaro occupied an apartment on the third floor of the Palomar Apartments at Sixth and Maple Streets in San Diego.
Horton was on parole after conviction of a felony; she admitted convictions of burglary and possession of narcotics. Her husband recently had been released from State Prison.
Some time in November 1958, Thwaits came to her apartment with a friend of hers and said he knew her husband. Later he took her to his house in Torrance and on one occasion he and "Liz" (Elizabeth Kelly) took her to dinner. On one of these visits Thwaits spoke about their being "broke" and said something was coming up later and if she was interested he would let her know about it. She acquiesced, though he did not then explain further. On December 26, 1958, he telephoned her saying the matter had come up and he would be by and pick her up; also that he did not care to discuss it on the telephone but it was very good and he would explain on his arrival. Horton said all right. Thwaits told her to dress as she had to go through the lobby of an apartment. He arrived about 4 p. m. finding her ready and told her they should be back the same night but possibly not; that he did not have time to explain but would do so in the car. In the vehicle was defendant Robearge, commonly known as Sonny. Thwaits made a telephone call and said they were going to San Diego; that they would go there to an apartment and Sonny would go with her. She asked for details and was told that Thwaits could not give them until he met the other people in San Diego. Who are they? That doesn't concern you, we just want you to get into apartment. They then went [191 Cal. App. 2d 211] to Robearge's house. He came out with a long butcher knife and a roll of tape. Asked why a knife he said "the mark is an old dago" and guns would not scare him. Next they went to Thwaits' house in Torrance. Liz was there at the time. The three left about 6 p. m. in Thwaits' two-tone green Dodge sedan, Thwaits driving. On the trip, immediately after starting, Horton asked what was going to happen and how much was involved; the men did not want to tell her, saying it was so much she would not believe it, anywhere from $50,000 to $150,000; that it would be a simple matter like taking candy from a baby. The split of the money was brought up and Thwaits said the other two men were to get 20 per cent. Horton was surprised because she thought the going rate was 10 per cent to "finger men." She said that was too high, but Thwaits replied no, there are two of them and their information is reliable, coming from the victim's ex-bodyguard. Robearge asked about a gun and Thwaits said they would get it down south. Horton asked, "Why right now?" and was told the man they "were supposed to take" was leaving for Italy within a week; they would have all the details when they got to San Diego and met some other people. The fact that a crime was to be committed was first mentioned in the car in Santa Monica. Thwaits there said that Robearge would go in with Horton on the job; that they would be the ones that did it. Horton testified she did not recall whether robbery was directly mentioned but she assumed that was what it would be; she knew it was robbery or burglary or something and assumed it was robbery; that it would almost have to be that.
Upon arrival in San Diego Thwaits parked his car back of the San Diego Hotel; soon he said he must have missed the people he was supposed to meet. Then he said, "here he is now." At Thwaits' suggestion Horton and Robearge went to a coffee shop and waited while he talked to the newly arrived men. In due course Thwaits told them (Horton and Robearge) his car was to follow "these people" up to a man's apartment. In that car were Buono and Murray who had driven from Perris to the meeting place, with Buono doing the driving. The two cars moved to a point near the apartment house, parked on the other side of the street next to a public park, about 30 feet apart with the Buono car in front. Murray walked back to the Thwaits car, gave the occupants the layout of Mirabile's apartment, told them where the money would be, said that Mirabile had two wallets, one of which contained [191 Cal. App. 2d 212] "heavy money" and probably on his person; also told about a wall safe which, if still there, was behind a picture. Horton asked how she would get Mirabile to let her in; Murray said he would get the telephone number for her. He went to the Buono car and returned with a number. Who shall I say told me to call? Murray said he would find out. He returned to the Buono car in which Buono was sitting alone. He had been a San Diego policeman and at another time bodyguard for Mirabile. When Murray was there the second time Buono opened the car door, the light came on, he faced Horton and the others and looked at them. This is the only time that Horton saw him. After talking to Buono, Murray returned and said that Horton should mention Wilbur Clark of Las Vegas to Mirabile. Thwaits asked about a gun and Murray said he had it. He asked about the knife and Robearge said they had it. Horton later identified both Murray and Buono. After going over the apartment layout again, Murray returned to the Buono car which soon left and was not seen again by Horton. She and her companions then killed time until midnight. During this period they discussed just how they would go in; Robearge would go up with Horton posing as a friend that was going to drop her off and that she would get him in and he would tell Mirabile they were after the money after they were upstairs in the apartment. They also purchased some clear nail polish to put on their hands to prevent finger prints. Shortly after 12 o'clock Horton called Mirabile on the telephone and he agreed to receive her and to open the front door of the building for that purpose. When she arrived he did not answer her summons so she called again in a few minutes. He said he would be right down and let her in. When they got out of the car Robearge handed her the knife which she concealed beneath her full coat. Mirabile met her and Robearge and invited them into the apartment. There was some small talk, she went to the bathroom and then Robearge went. Upon Robearge's return he produced a gun, one which belonged to Buono, and said, "This is it, don't get excited, all we want is some money." Mirabile started screaming, "What is happening, you can't get away with this, and there is somebody else sleeping in the apartment." He screamed for Fillipo, the nephew. Robearge said to Horton, "Well, let me go check on this guy and keep him here." She had the knife in her hand; she told Mirabile to sit and he would not get hurt, as all they wanted was the money. He pushed her away and ran toward the back of the apartment. Horton screamed for [191 Cal. App. 2d 213] Robearge and went to him where he was threatening Acquaro in one bedroom. Robearge said, "I will go see about him [Mirabile], you keep him here," referring to the nephew. Horton told Acquaro to stay where he was, he might get hurt. Acquaro came toward her and as he did so lifted the corner of the mattress and she ducked; he came out and grabbed her, struggling for the knife. While this was going on Horton heard several shots. By that time she was on the floor, Acquaro on top of her, in possession of the knife and trying to stab her. He did succeed. Mirabile came by saying, "they would kill me." Then Robearge arrived, hit Acquaro with the gun and knocked him off of Horton. Mirabile had fled into a bathroom in which he was later found dead. Both doors were locked from the inside, obviously done by himself. After disposing of Acquaro, Robearge said, "We have got to get out of here," and he and Horton fled. Buono's gun was left on the table in the apartment. On the stairs Horton fell and said, "I don't know if I can make it," but with her companion's help she got into the waiting Thwaits car which drove hurriedly away, disregarding a stop sign at the corner.
At that time Horton had blond hair. As she and Robearge made their escape several neighbors were gathered in the hallway. She answered their inquiries by saying that nothing was wrong and for them to go back to bed.
Mrs. Hannah Johnson, living on the second floor, had heard a disturbance in the Mirabile apartment, and sounds of scuffling and a woman screaming. She was in the hallway as a blond woman, identified by her as Horton, and a man came downstairs. He had black hair combed straight back from his forehead, was clean shaven and dressed in a dark colored suit. She could not identify him positively, but testified that his appearance was similar to that of Robearge who was in the court room. The woman fell and said, "we will never make it," but Mrs. Johnson saw them no more.
T. J. Flaherty, who lived on the second floor, was awakened about 1 a. m. He heard people running in the Mirabile apartment, heard Mirabile scream and there were sounds of wrestling on the floor. He also heard two shots. Looking out the window he saw a "hard top, two-door, two-toned car" at the curb with lights on. As people entering it closed the door the driver left at a rapid rate. Later police placed at the curb a car of the same make and color as Thwaits'. Flaherty looking out the window pronounced it identical with the one he had seen on December 27th.
Lawrence Conant was reading in his second floor apartment at 12:30 or 1 a. m. on the 27th. He heard scuffling sounds from the third floor and two sharp reports. Through the window he saw a blond girl and a man run from the building entrance to a car parked at the curb. The man had dark hair brushed back. The car departed at once. Later police asked him to look at one they had parked below. He pronounced it of the same general type and exactly the same color as the one seen by him on the 27th.
Elizabeth Bischoff, living on the fourth floor, was awakened at 1 a. m. on December 27th by a woman screaming and a shattering of glass. Through the window she saw legs disappearing into a car at the curb. It left in a hurry, not stopping at the boulevard sign on the corner. Her description of the car tallied with that of Thwaits' two-toned Dodge. The police found human blood on the right side of the front seat of Thwaits' car. Horton rode in that spot on the return trip from San Diego.
[1a] The foregoing resume of evidence favorable to respondent's case leaves no room for doubt that a conspiracy [191 Cal. App. 2d 215] was formed as charged. Where or when this was done does not clearly appear but the concert of action between the Los Angeles participants and those from Perris pursuant to a previously arranged schedule, the inquiry from the one group about the gun and from the other group as to the knife, the exchanging of information concerning the layout of the Mirabile apartment and the proper method of gaining entrance, leave no room for doubt that all had been done pursuant to a previous arrangement looking to the robbery of Mirabile.
On cross-examination Mrs. Horton testified: "Q. Now, when you first were called and you agreed to go, you knew that you were going in an enterprise that was in violation of the law as well as morally wrong, didn't you? A. Yes. Q. And you were a willing and willful and intentional participant in this plan to break the law, whatever it was? A. Yes." This of itself was enough to make her a party to the conspiracy which gradually unfolded before her and to which she testified.
It is important here to keep in mind the familiar rule that the corroboration required by Penal Code, section 1111 fn. 1 does [191 Cal. App. 2d 216] not include the corpus delicti and is confined to the matter of connection of the individual defendant with the crime.  "The only corroboration necessary for the evidence of an accomplice under the statute is that which tends to connect the defendant with the commission of the crime, not evidence of the corpus delicti. [Citations.]  The corroborative evidence may be slight and entitled to little consideration when standing alone. [Citation.] Defendant's own admissions are sufficient corroboration. [Citation.] Finally, corroborative evidence may be circumstantial. [Citation.]" (People v. Wade, 53 Cal. 2d 322, 329 [1 Cal.Rptr. 683, 348 P.2d 116].) These rules are applicable to conspiracy as well as any other crime. It is a distinct crime in itself (People v. Robinson, 43 Cal. 2d 132, 138 [271 P.2d 865]), defined by section 182, Penal Code.
 The testimony of an accomplice is sufficient to establish the fact of conspiracy; he or she needs corroboration only with respect to defendant's connection with it.  "There is a distinction between the declarations of an accomplice made during the course of a conspiracy and the testimony of a conspirator given at a trial and while under oath and subject to cross-examination. Standing alone, such testimony is ordinarily sufficient to prove the corpus delicti of an offense, leaving to the corroboration by other evidence the proof of the criminal agency, or such evidence as tends to connect the defendant with the commission of the offense." (People v. Griffin, 98 Cal. App. 2d 1, 46 [219 P.2d 519].) See also People v. Teitelbaum, 163 Cal. App. 2d 184, 214 [329 P.2d 157]; People v. McNamara, 103 Cal. App. 2d 729, 739- 740 [230 P.2d 411]; People v. Goldaber, 17 Cal. App. 2d 195, 197 [61 P.2d 975]. [1c] The testimony of Horton, which obviously was credited by the jury and trial judge, is sufficient in itself to establish the fact of the conspiracy, thus requiring corroboration of her accomplice testimony only as to the connection of the defendant with that existing conspiracy. Appellants' claim that her evidence was inherently improbable is without merit.  "To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." [191 Cal. App. 2d 217] (People v. Huston, 21 Cal. 2d 690, 693 [134 P.2d 758].) To same effect see People v. Wein, 50 Cal. 2d 383, 399 [326 P.2d 457].
Fricke on California Criminal Law (7th Ed.), page 108: "Since the accomplice need be corroborated only as to that portion of his testimony which tends to connect the defendant with the offense charged, the suggestion in the Morton case [139 Cal. 719, 724 (73 P. 609)] is too broad since, if the entire testimony of the accomplice were eliminated from consideration, we would exclude testimony of the accomplice as to matters as to which he need not be corroborated such as the sole proof of the corpus delicti. The true rule is whether there is any evidence, other than the testimony of the accomplice which tends to connect the defendant with the commission of the offense and, if there is, the accomplice is corroborated and, if there is no such evidence, then there is no such corroboration as is required by law."
 As to Robearge. The identification by Mrs. Hannah Johnson, though not positive, established a similarity of appearance of defendant Robearge and the fleeing robber-murderer. That is enough for valid legal identification (see People v. Jackson, 183 Cal. App. 2d 562, 568 [6 Cal.Rptr. 884]).
On December 26-27 Robearge did not have a mustache. Such was the testimony of Acquaro, Mrs. Johnson, Mr. Fielder (Personnel Manager of the company where Robearge worked), and William Bryden (his welding foreman). Bryden said that Robearge began wearing a mustache two or three weeks after Christmas, 1958. Mr. H. Wright, appellant's next door neighbor, testified that he saw him about 10 a. m. on December 26th and that he had no mustache; also that Robearge had one for some weeks in the previous September, at which time he told Wright that a mustache was "an important change in his face and would make it difficult positively to identify him." Appellant appeared at the trial wearing a mustache. He told Lieutenant Geer that he had one prior to Christmas. These manifestations of consciousness of guilt and effort to cover up certainly constitute the required corroboration.
So do defendant's efforts to conceal his absence from home and from work on December 26th. He told Lieutenant Geer that he had worked on that day and went into detail as to vividness of memory in that respect, adding that he reported sick the following morning due to a hangover. Confronted with the fact that the 27th was Saturday and not a work day, he referred to his wife as having a better memory than his own. The Personnel Manager and the welding foreman of his employer testified that he did not work on the 26th. Daryl [191 Cal. App. 2d 219] Gray went to Robearge's residence at 7:30 p. m. on the 26th and he was not there. At 1 a. m. on the following morning Gray took Mrs. Robearge home and defendant was not there at that time.
Elizabeth Kelly, who was living at the Thwaits' house, testified that Thwaits brought Robearge and Horton to the house at about 6 p. m. on the 26th; that they left about 7 p. m. and that Thwaits said he was going to San Diego. He also told Mrs. Kelly if Robearge's wife phoned she should not tell her where they were going.
Robearge's knife was found on the floor of Mirabile's apartment after the murderers had fled.
Much other corroboration is found in the record but the foregoing is amply sufficient to corroborate the Horton testimony as to Robearge's connection with the crime.
 As to Murray. On December 27th he told Deputy Sheriff Capps he was last in San Diego several weeks or months previously, later admitting he was there on the 26th. According to the testimony of Mrs. Alice Murphy he saw her in San Diego on the evening of the 26th and told her Buono was not in town with him. The telephone company records show numerous telephone calls between Thwaits and Murray on the 26th,--one at 11:35 a. m. immediately after Thwaits' call to Horton at 11:30; at 1:50 another telephone call from Murray to Thwaits' residence. On the 27th there was a call between Thwaits and Murray at 5:19 a. m. and another at 11:39 a. m. Murray admitted making three telephone calls to his home between 6 and 8 p. m. on the 26th. He told police he was concerned about his son who was expected to return from San Diego to Perris that night; but the son testified he had not planned to return that night and had not told his father he would.
Murray told Officer Myers that he and Buono drove to San Diego on the 26th to see one Burnett, and left for home at 8 p.m., so he admittedly was there about the time Horton said he was. Murray also told the officer he had seen Mirabile in San Diego at crime hearings in late 1958, and that Buono pointed him out and said he had tried to borrow money from Mirabile. Asked about his and Buono's leading the way to the Mirabile apartment for the other three confederates, Murray said, "I would rather not answer that." Asked if it wasn't true that while at that location he talked to the other three persons, he answered, "I would rather not answer that." Myers said, "You don't deny that you talked to Hank [191 Cal. App. 2d 220] [Thwaits] on Sixth Street?" and Murray replied, "no." Later he denied talking to Hank on Sixth Street. He admitted to Myers that only two persons could have removed the Buono gun from Murray's house, declared he had not done it, but when asked if Buono had removed it he said, "I would rather not say." When asked if he knew who gave the gun to another party he stated he would rather not say. Shown a picture of Robearge and asked to identify it, Murray replied, "If this is the person that I think you are referring to, I only saw one time, I think it is the person, but it is not a good picture." Shown a picture of Horton, he gave the same reply. He also said "he had only seen the two persons he thought we were referring to for a short time in a darkened area." He asked if he could make a proposition to the officers, saying that he wanted to talk to his wife and then "he would tell us all he knew about this." Also that he felt if he told them the truth they would believe him and that if he told them what he knew about it they would be surprised at some of the details. To the suggestion that Buono had been using him and remaining in the background, Murray laughed and said that as serious as the charges were he could still laugh as he could see exactly how he had been used. The officers were unable to contact Murray's wife and gave him "a couple of hours to think it over." Later when they saw him he said he had talked to an attorney in jail and would not discuss the case until he had further talked with the attorney. The corroboration is ample as to Murray.
 Concerning Buono. The gun which was found in Mirabile's apartment with three shots fired belonged to Buono. He testified that he had purchased it from C. H. Hillary in 1955; that he took it to Murray's home and left it about Thanksgiving of 1958, because his own son had been playing with it; that he did not see it later. He admitted that he and Murray did drive to San Diego on December 26th. As this same gun was found in Mirabile's apartment after his murder, it must have been taken on this trip and delivered to Robearge before he entered that apartment. Buono admitted on the witness stand that he talked to Mirabile at the crime hearings in San Diego and tried to get him to pay off a $5,000 obligation of Buono's.
Sergeant Sgobba, of the San Diego Police, saw Buono in Perris driving a car in January, 1959. He got in with him and Buono started to drive off, saying he did not want Murray to see him parked in a car talking to Sgobba. The officer [191 Cal. App. 2d 221] told him the police were convinced that he alone had the intimate knowledge of Mirabile's habits "to set up the robbery." Buono said, "I just remembered. Murray had the information too," explaining that at the crime hearings in San Diego the Murrays were close by when Mirabile wanted to pay his attorney and told him, "I have got $10,000 in my pocket right now."
Next day after an interview with Sergeant Orr, Buono asked for him and said he was in a jam and needed help. Told that the district attorney was the only person who could help him he asked Orr to see that official in his behalf. Orr asked what Buono had to offer and he said he had been "double crossed by this whole outfit"; that he had planned a robbery of a Chinaman in San Diego named Charlie Lei, a revenge robbery. He related that when he and Murray were in San Diego in front of the Hotel San Diego Murray said "stop the car"; he did so and Murray got out and met another man who was near the San Diego Hotel. Murray came back and instructed Buono to drive around the block and park on State Street; Murray and the other man had a discussion and then Murray came back to the car and said, "he is going after them now." Shortly after that this same man came back to the car with a blond woman and a slender man. Buono said he could not identify any of them but "You can tell in a minute whether you have got the right girl or not, she will have a stab wound in her chest." He also said that the three people got into one car and he and Murray into Murray's car and both drove to within a block of the Mirabile apartment; that Murray then left the car, had a discussion with the other three in the other car; returned and told him, Buono, "Everything is all set, she's got a stiletto about this long," indicating 18 or 20 inches. He and Murray returned to Perris after the latter made a telephone call. Buono accurately described Thwaits' 1956 Dodge car. He also said that on the following morning about 11 o'clock Murray came to his house and told him that Mirabile was dead and the police were swarming around his apartment. They drove to South Riverside where Murray made a telephone call and upon returning said "that the girl had been stabbed, possibly fatally." Later, Sergeant Orr told Buono that the district attorney was not interested in any deal. About that time Robearge passed a nearby window and Buono was asked to look at him. After doing so he did not say anything but nodded in the affirmative and then said, "How could [191 Cal. App. 2d 222] a person miss a schnozz like that?" Buono then asked again to talk with the district attorney and said, "I can possibly give you an eyewitness to people being here, plus the fact that this box of .38 shells that Mr. Murray had in his car." Also Buono told him that they had to get rid of those shells because of the possibility of comparison, and they drove out toward Hemet and Murray dumped the shells alongside the road. There is no insufficiency of corroboration here.
 The same evidence which connects each of the appellants with the conspiracy and its attempted robbery connects them with the murder. (25 Cal.Jur.2d § 84, p. 590.) The murder needs no further or other corroboration.  People v. Martin, 12 Cal. 2d 466, 472 [85 P.2d 880]: "It is, of course, the well-settled law in California that if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional or unintentional, or accidental, each and all of such persons so jointly engaged in the perpetration of, or attempt to perpetrate such crime of robbery, are guilty of murder of the first degree." People v. Waller, 14 Cal. 2d 693, 703 [96 P.2d 344]: "It is well established, however, that if a homicide is committed by one of several confederates while engaged in perpetrating the crime of robbery in furtherance of a common purpose, the person or persons engaged with him in the perpetration of the robbery but who did not actually do the killing, are as accountable to the law as though their own hands had intentionally fired the fatal shot or given the fatal blow, and such killing is murder of the first degree. The jury has no option but to return a verdict of murder of the first degree whether the killing was intentionally or accidentally done, and it is proper so to instruct the jury." To same effect see People v. Miller, 37 Cal. 2d 801, 805 [236 P.2d 137]. Proof of defendant's connection with the conspiracy to rob connects him as a matter of law with the attempt to rob and the ensuing murder.
"The interpretation contended for by respondent would completely disregard the phrase 'or the acts or effects thereof constituting or requisite to the consummation of the offense' contained in the section. Obviously, the phrase, 'or requisite to the consummation of the offense', means requisite to the completion of the offense--to the achievement of the unlawful purpose--to the ends of the unlawful enterprise. By the use of the word 'consummation' the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense--that is, to the achievement of the unlawful purpose of the person committing the offense.
"By his second contention respondent would limit the essential or necessary elements of an offense or its effects to those acts or effects of acts occurring prior to the instant that the offense becomes sufficiently complete to warrant prosecution. Under the interpretation we have already given to the section, this construction cannot be sustained." See also People v. Anderson, 3 Cal. App. 2d 521, 523 [40 P.2d 270]; People v. Gonzalez, 180 Cal. App. 2d 285, 288 [4 Cal.Rptr. 822].
[16c] When Thwaits, Robearge and Horton met in Santa Monica and there started their journey to San Diego, an overt act sufficient to sustain Los Angeles jurisdiction was performed. When Thwaits told Horton and Robearge, while still in Los Angeles County, and they agreed that they would be the ones that would do the job, that was another overt act in that county. When Robearge went into his house in Manhattan Beach and brought out the long knife and roll of tape, another Los Angeles overt act occurred. Jurisdiction to try the conspiracy charge plainly was fixed in that county.
 Appellants argue, however, that San Diego had exclusive jurisdiction over the crime of murder, relying upon section 790, Penal Code, which says in part: "The jurisdiction of a criminal action for murder or manslaughter is in the county where the fatal injury was inflicted or in the [191 Cal. App. 2d 225] county in which the party injured died or in the county in which his body was found. ..." Viewed apart from the conspiracy, this section doubtless would be controlling, but People v. Abbott, supra, 47 Cal. 2d 362, teaches otherwise. That case involved a kidnaping which began in Alameda County and apparently resulted in murder in Trinity County where the victim's body was found. Convicted in Alameda County appellant contended: "[T]hat the judgment should be reversed, claiming that the Superior Court of Alameda County did not have territorial jurisdiction of the offenses of which he was convicted." (P. 369.) The court said: "The jurisdiction of a criminal action for kidnaping is in the county in which the offense was committed or out of which the victim was taken or in which an act was done by the defendant in promoting or aiding in the commission of the offense. (Pen. Code, § 784. For definition of the terms used in § 784 see Pen. Code, § 691.) Stephanie was taken out of Berkeley, which is in Alameda County, and there can be no doubt that the superior court of that county had jurisdiction to try the offense of kidnaping.
We see no difference in principle between the combination of kidnaping and murder and that of conspiracy to rob with resulting murder, except the emphasis that Penal Code, sections 182, 184 and 781, lend to the propriety of reaching the conclusion announced in Abbott, supra. We are satisfied that the Los Angeles County Superior Court had jurisdiction over both charges in this case.
[20a] Appellants complain of exclusion of proffered testimony about the Mafia. That organization was described by defense counsel as the "organization of Sicilian, or Sicilian American groups sometimes in the past known as the Black Hand and often referred to as the Sicilian Brotherhood." The theory as explained by counsel for defendants was that Mirabile was reputed to be San Diego head of the Mafia from 1951 through 1958; that he was discussed at hearings of the State Crime Commission conducted in San Diego County; that he was reputed to have attended a meeting of the Mafia at the Grace Ranch near Tucson in 1954 and that Buono "can prove that as a matter of Mirabile's reputation"; that unfavorable publicity was thus incurred; that "according to Mafia practice that it is probable to believe that because of the undue publicity that Mr. Mirabile had received that he might have been dealt with by the Mafia" (emphasis added); that Captain Hamilton of the Los Angeles Police Department testified before the crime commission and was quoted in a San Diego and a Los Angeles newspaper concerning the Mafia and its practices of revenge (these newspapers were offered as evidence); that counsel believed that Captain Hamilton, who was under subpoena, "is in position to testify that there was some association between Tony Mirabile and Jack Dragna who was reputed to be the head of the Mafia on the West Coast prior to his death and who resided here in Los Angeles, and we think that this Fillipo Acquaro, one of the witnesses in this case, was a cadet and being groomed in the Mafia"; "Mr. Whelan: Does your Honor hold that any offer of proof with reference to the membership of Tony Mirabile in the Mafia, or the fact that he visited this Grace Ranch, or that the Mafia itself when they are dissatisfied with a member get rid of the member either by expelling him or by eliminating him by execution, is immaterial here? The Court: Under the facts of this case it is." This ruling was followed by additional offers as to what testimony Captain Hamilton gave [191 Cal. App. 2d 227] before the crime commission. Again, "In this book by Sondern, which has the written approval of and commendation of Harry Anslinger, who is the Federal Commissioner of Narcotics in Washington, in this book they talk about the practices of the Mafia eliminating members when they are displeased with the members and the members don't want to stand being expelled, then they are eliminated, they are murdered, they are executed, and that appears in three or four different places in this book, 'The Brotherhood of Evil: The Mafia,' by Sondern, and it is, I think, recognized by different members in law enforcement as an authentic book and recital of the practices and rules of the Mafia. ..." Arguing further to the court counsel said: "So that means that there must have been some kind of a struggle in that apartment different than the struggle that Acquaro has told us about and different from the struggle that Horton has told us about, and that could well be explained by a subsequent struggle between Mirabile and this so-called nephew of his, who is not a nephew of his at all, after these other people had gone. You might think that we are stretching out and reaching for something, but you have definitely the testimony that there was this dent there in the wall, there was this plaster and paint down on the table, some of it on this gun, and it is unexplained." (Emphasis added.) In arguing to the jury counsel who had made these offers said: "Now, I am not trying to throw any responsibility for the killing of Tony Mirabile on Fillipo Acquaro. That isn't my job. It is the prosecution's job in this case to prove the guilt of the people on trial here beyond a reasonable doubt." Still "stretching out and reaching for something" counsel for Buono argue in this court as follows: "A pretty fair case could have been made out against Felipe Acquaro, supposed to have been the nephew of Tony Mirabile, but who was in fact a distant relative. He had been brought over from Sicily sometime earlier in 1959, but did not move into Tony Mirabile's apartment until after the expose of Tony Mirabile as head of the Mafia and the meeting of the State Assembly Rackets Committee. In the light of the practices of the Mafia with reference to members and leaders who bring undue publicity to the organization, as set forth in the book, 'The Brotherhood of Evil, the Mafia,' by Frederick Sander [sic], Jr., which has a foreword and an endorsement by Harry J. Anslinger, Commissioner, Bureau of Narcotics of the Treasury Department, an extensive examination of Capt. Hamilton could very well have established that it was [191 Cal. App. 2d 228] more reasonable and probable that Felipe Acquaro was the actual killer of Tony Mirabile than anyone else."
It is immediately apparent that the offers of proof consisted of hearsay, conclusions and speculation, but nothing amounting to competent proof of any probability that the Mafia or Acquaro as its agent ever intended, threatened or desired to kill Mirabile. The nearest counsel got to an offer to prove threats against Mirabile was the following: "Now, if we are allowed to prove all of these things by this witness, we intend to go farther and ask this witness if he didn't know as a fact that Norph Broncato, who has been released from Folsom Penitentiary and was released some time during the latter part of 1958, had made threats concerning Tony Mirabile because of the contention of Norph Broncato, whose brother was killed, that Tony Mirabile had ordered the killing. I don't know whether Captain Hamilton will testify to that latter portion concerning Norph Broncato, but he certainly would testify to all the rest, and all of the things on which it was quoted."
 A defendant may, of course, establish his innocence by proving directly or circumstantially that some other person or persons killed the victim. But the mere possibility that some third person did it is not enough. There must be some competent and substantial proof of a probability that this happened. People v. Mendez, 193 Cal. 39, 51, 52 [223 P. 65]: " 'It is always proper to show that some other person and not the defendant committed the crime with which he is charged.' (People v. Mitchell, 100 Cal. 328, 333 [34 P. 698, 700].) The question herein is what kind and quality of evidence is essential to that end. ... It seems clear that a defendant, in order to exculpate himself, should not be required to establish the guilt of a third person with that degree of certainty requisite to sustain a conviction of the latter. On the other hand, it seems equally clear that evidence which simply affords a possible ground of possible suspicion against another person should be inadmissible. The decisions in other states are not completely harmonious upon this question. But they are substantially unanimous in holding that mere evidence of motive in another person, or of motive coupled with threats of such other person, is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged. ... It seems to us that there is a sound basis for this rule and that it rests fundamentally upon the same consideration [191 Cal. App. 2d 229] which led to the early adoption of the elementary rules that evidence to be admissible must be both relevant and material. It rests upon the necessity that trials of cases must be both orderly and expeditious, that they must come to an end, and that it should be a logical end. To this end it is necessary that the scope of inquiry into collateral and unimportant issues must be strictly limited. It is quite apparent that if evidence of motive alone upon the part of other persons were admissible, that in a case involving the killing of a man who had led an active and aggressive life it might easily be possible for the defendant to produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased; that a great many trial days might be consumed in the pursuit of inquiries which could not be expected to lead to any satisfactory conclusion." Accord: People v. Perkins, 8 Cal. 2d 502, 514-515 [66 P.2d 631]; People v. Vatek, 71 Cal.App. 453, 473 [236 P. 163]; People v. Gentekos, 118 Cal.App. 177, 182 [4 P.2d 964]; People v. Wagner, 21 Cal. App. 2d 92, 95 [68 P.2d 277]; People v. Landry, 106 Cal. App. 2d 8, 12 [234 P.2d 736]; Fricke on California Criminal Evidence, 5th edition, page 264; 40 Corpus Juris Secundum, sections 219-220, pages 1132-1133. [20b] There was no error in the court's rulings upon the questions and offers of proof having to do with the subject of the Mafia.
 Another claim strongly pressed by appellants is error in excluding evidence concerning Jeanne Horton's alleged use of narcotics. On cross-examination she was asked whether she was using any narcotics on December 26, 1958, or at the time of her arrest on February 2, 1959, whether she was using any narcotics at all in December, 1958 or in January and February, 1959; she answered all these questions in the negative. She said she knew Calvin Woods and was asked whether he ever furnished her any narcotics during the period of December 1958 through February 1959, and she said no. By way of attempted impeachment defendants made several offers. One was to prove that at some time shortly before the 6th of January, 1959, Woods saw Horton administer narcotics to herself. One of defense counsel said: "This is impeachment of the testimony that she was not using narcotics at the time, and this would certainly impeach her as to that, if he testified the way I think he would testify. Another defense attorney: "This isn't being offered for purposes of impeaching the power of this witness to observe [191 Cal. App. 2d 230] and to recollect, and it is certainly proper"; and "The witness Horton also denied upon questioning that she had taken narcotics during any of this period, that is, around December 26th, and a few days prior thereto, or a subsequent time up to and including the time of her arrest"; at another time: "Further, that Jeanne Horton had called him and said she was sick. ... That she was sick and that in response to a telephone call he went to her apartment and that he brought the narcotics, and that both he and Jeanne Horton fixed in her apartment; that this was a few days before January 6, 1959"; also, "Mr. Whelan: In addition to impeaching the testimony of Jeanne Horton, I think this is affirmative evidence to show by circumstantial evidence that the jury could well infer that she was on December the 26th and for a long time thereafter addicted to and under the influence of narcotics, and it is a circumstance that I think is admissible, I believe, to establish that, and while the fact that she was under the influence of narcotics wouldn't destroy her testimony, it is something that goes to the weight of her testimony and the jury is entitled to pass on her testimony and determine what weight they ought to give it. ... Mr. Littlefield: I would like to say, also, your Honor, that we will offer, as Mr. Whelan suggested or stated, evidence not only to impeach the witness, but circumstantial evidence to show her addiction as well as for the purposes of impeachment."
No expert testimony of any kind was offered in this connection and the effort to discredit or impeach Horton's testimony was not made through further cross-examination. A reading of the cold record discloses no basis for inferring that her mentality had been impaired either as to her ability to observe and remember or to accurately detail the facts. Her credibility was impeached by admission of former convictions of felony and admission of a disposition to lie to the Police when that seemed expedient; but that has no connection with narcotics.
"In this state, whatever the rule may be in other states, the problem is partially, at least, covered by statute.
"Thus, even if addiction does cause a general predilection towards untruthfulness (a fact not supported by substantial medical authority--see 16 So. Cal.L.Rev. 333, 334), the witness could be impeached in this respect in this state only on cross-examination, and not by the production of other witnesses, experts or otherwise. It follows that the restrictions placed on the examination of Dr. Shaw by the trial court were proper."
An annotation in 52 American Law Reports 2d, at page 849, says: "Although the authorities are somewhat conflicting, the rule supported by the majority of the cases seems to be that for the purpose of discrediting a witness, evidence is not admissible to show that he is a user of opium, morphine, or similar drugs, or to show the effect of the use of such drugs, unless it is proven that the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit."
16 So.Cal.L.Rev. 333, 334: "However, the not too numerous, and in the main inadequately reasoned, cases upon this subject suggest the following conclusions: (1) The active influence of the drug or the organic impairment of faculties arising out of its habitual use may affect the capacity of the witness to perceive, to remember or to narrate, and may thus be relevant to the issue of his credibility. The issue as to the nature and extent of the impairment is just an ordinary issue of fact. (2) Doubtless a pathological liar would be lacking in credibility as a witness. If the use of narcotics can produce a pathological liar, then such use becomes logically relevant to the issue of credibility. The basic inquiry here [191 Cal. App. 2d 233] lies in the field of science. This specific problem is little discussed in the cases. Only one case comes out boldly in support of the thesis that drug addiction results in pathological lying. The thesis must receive general scientific acceptance before the courts can make this approach to the issue of credibility; and, even granted such acceptance, the lag of the courts in utilizing it is likely to be appreciable." See also treatment of this problem in McCormick on Evidence, section 45, page 98.
In the absence of any testimony or proffer of testimony of experts to the effect that narcotic addiction does impair the capacity or disposition to tell the truth, or any proof warranting the inference that Horton was under the influence of a narcotic at the time of preparation for or commission of the crime, or when testifying, and in the absence of any attempts to prove these things by cross-examination, we conclude that there was no error in the court's exclusion of the evidence specified in the offers of proof.
[23a] Error is said to reside in the admission of certain conversations between Thwaits and Horton at Torrance in the early morning of December 27th after they returned from San Diego. She was then in bed treating her stab wound and hiding from the police. Thwaits had a conversation with someone whose identity she did not know, which he related to her: "He said that he had talked to the people down south and they wondered how everything had come off, and he told them that nobody got any money and that Mirabile got shot and I had been stabbed and that the gun was left up there, and they said they were very concerned about me, well, what would I do, and he told them not to worry about me but to worry about themselves, and that is about all there was to that"; also: "Q. Now, did he get any further phone calls that he related to you the substance of? A. Yes, he did. Someone called him and said that the gun that we used had been registered in their name and that the police were waiting at their house with a warrant for him, and that Mr. Thwaits better try to send him money for an attorney. ... Mr. Thwaits said that he told them he didn't have any money for an attorney and the best thing he could do was to try to keep his mouth shut because this wasn't some lousy parrots, that this was the gas chamber he was looking at this time. That is about all there was to that."
[23b] It was just as important for Horton to know of the necessity of evading arrest as it was for Thwaits or for any of the others who telephoned him, and under the above authorities these conversations were competent. (See also People v. Megladdery, supra, 40 Cal. App. 2d 748, 775-777.) There was no error in the court's rulings with respect to this matter.
 Appellant Robearge asserts prejudicial error in the court's receiving evidence which disclosed his former connection with Thwaits in the Los Angeles Jail and in Folsom Penitentiary. When Sergeant Sgobba on February 3, 1959, was interviewing Thwaits, he remarked: "It is obvious Jeanne must have talked." Asked how long he had known Sonny (the only name police then had for the trigger man), Thwaits said he met him in 1949 in the county jail in Los Angeles and later they were inmates together at Folsom. Sgobba, of course, was interested in identifying and arresting the actual killer. Thwaits gave the officer a physical description of Sonny but stated he did not know his last name or the address in Redondo Beach where he resided. He also said he could not tell Sonny's last name as he had a conscience and had to sleep nights. Asked for a shortcut to get the trigger man, Thwaits said: "Go ahead and call Folsom, they will tell you who Sonny is." Sgobba said there were perhaps a lot of Sonnys at Folsom and Thwaits replied, "just ask them for Sonny who used to be a welder up there and they will give you his name." It is obvious that this would lead the police directly to the name of the killer and to his apprehension and trial.
The conversation, of course, disclosed former conviction of a felony, but Robearge later took the stand and admitted the same, thus precluding any effective claim of prejudice (see People v. Tinnin, 136 Cal.App. 301, 319-320 [28 P.2d 951]). Moreover, it now is established law that proof of conviction of another crime is proper whenever it becomes relevant and material to proof of the crime involved in the trial.
Finally appellants complain of refusal of their requested instructions Numbers 36, 37, 35, 32 and 21. Examined in the light of the instructions given by the court and the governing authorities, it appears that each of them was properly rejected for one or more of the following reasons--incorrect in point of law, inapplicable to the facts, misleading or adequately covered by instructions given.
 Said Number 37 also says with respect to defendant Robearge that "when the attempted robbery and the conspiracy to rob was frustrated, the conspiracy terminated,"--this notwithstanding the fact that it resulted in the murder of Mirabile. Obviously this would have been misleading. "To constitute criminal conspiracy, it is not essential that the object of conspiracy should have been accomplished, and this is the rule even in jurisdictions where the statute requires an overt act in execution of the unlawful agreement." (15 C.J.S. § 44, p. 1070.)  "Proof that two or more individuals conspired to commit a crime and engaged in overt acts leading to its commission will sustain a conviction of conspiracy even though they failed to accomplish the object of their intrigue." (People v. Klinkenberg, 90 Cal. App. 2d 608, 635 [204 P.2d 47, 613].) Accord: People v. Gordon, 71 Cal. App. 2d 606, 628 [163 P.2d 110].
 Number 35 reads: "You are instructed that acts and statements of alleged conspirators before a conspiracy is formed cannot be considered as overt acts in furtherance of a conspiracy." While this is obviously correct, the matter was fully covered by CALJIC 938 which was given and which says among other things: "The term 'overt act', as used in the law of conspiracy, means any step or act by any one of the conspirators which goes beyond mere planning, agreement and intent toward the accomplishment of the object of the conspiracy, and which is done to effect that object."
Number 21 is a copy of Penal Code, section 790. Giving this instruction as tendered, without any recognition of the doctrine of People v. Abbott, supra, 47 Cal. 2d 362, 369-370, would have been misleading and hence erroneous.
None of these rulings would or could result in prejudicial error.
The judgments of conviction of the respective appellants, Buono, Murray and Robearge, and the order denying new trial as to each said appellant, are affirmed.
Fox, P. J., and McMurray, J. pro tem., fn. * concurred.
FN 1. Pen. Code § 1111: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ..."