Wagner v. State

Decision Date04 December 1894
PartiesWAGNER ET AL. v. STATE.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. In misdemeanors there are no accessories. Those whose conduct is such that it would constitute them accessories before the fact if the principal offense were a felony, are, if it be a misdemeanor, guilty as principals.

2. Therefore, under an information charging the defendant with procuring, aiding, and abetting another to commit an assault with intent to wound, the defendant may be convicted of assault and battery.

3. An information which in apt words charges the commission of an offense which the statute makes a felony is not bad because it does not charge that the act was feloniously committed.

4. Where a particular intent is an essential element of a crime, one is not guilty as an accessory before the fact to such crime unless he participates in or has knowledge of such intent.

Error to district court, York county; Wheeler, Judge.

Zoeth Wagner was convicted as accessory before the fact to the wounding of one Casper Salmen, and Lawrence Wagner was convicted of assault and battery. Both bring error. Reversed as to the former and affirmed as to the latter.Geo. B. France, for plaintiffs in error.

Geo. H. Hastings, Atty. Gen., for the State.

IRVINE, C.

The plaintiffs in error, together with Otis Koontz, were informed against in an information charging Otis Koontz with stabbing one Casper Salmen with intent to wound, and charging Lawrence Wagner and Zoeth Wagner, the plaintiffs in error, with having, before said offense, procured, incited, abetted, and aided Koontz in the perpetration thereof. Koontz demanded a separate trial, was convicted, and sentenced. The two Wagners were tried together. Lawrence Wagner was convicted of assault and battery. Zoeth Wagner was found guilty as charged in the information. They were sentenced, and have filed separate petitions in error to reverse the several judgments against them.

Lawrence Wagner filed no motion for a new trial, and the only point arising in his case, and the only one argued by counsel, is that, under an information charging him as accessory before the fact to the statutory felony of stabbing with intent to wound, no conviction could be had of assault and battery. It is a familiar law that no conviction as accessory will lie under an indictment charging one as principal, and vice versa. Whart. Cr. Law, 208. But it is also true that in misdemeanors there are no accessories. This rule does not mean that one conducting himself in such a manner that if the principal offense were a felony he would be an accessory is not punishable at all if the offense be a misdemeanor, but it means that in misdemeanors the law does not distinguish between principals and accessories, and that all who participate, whether present or absent when the crime is committed, are alike guilty as principals. Id. 223. This is true whether the offense is one at common law or whether it is one created by statute. Stratton v. State, 45 Ind. 468;Lowenstein v. People, 54 Barb. 299. It would seem, therefore, that at common law language sufficient if the offense were a felony to charge one as accessory before the fact would constitute a good indictment in the case of a misdemeanor as principal, and sustain a conviction as such. It is true that the criminal jurisprudence of this state is based on the Criminal Code, but we think that the Code is in this respect declaratory of the common law. The first section of the Criminal Code provides for the punishment of those who “aid, abet, or procure any other person to commit any felony.” This section provides for the punishment of accessories before the fact in the same manner as at common law, and the terms used are substantially the terms used in defining at common law such accessories; the definition is restricted to felonies. Generally throughout the Code offenses existing at common law are described by their common-law terms without further definition, and such offenses have always been construed with reference to the common law. The statute in regard to batteries does not use the term “battery,” but uses the language, “unlawfully strike or wound another.” This is substantially the common-law definition of a battery, although perhaps somewhat restricted as to the nature of the beating required, but not as to the persons doing it. We think it quite clear that the legislature did not intend by defining “accessories” in the terms of common law to prevent the punishment of those who aid, abet, or procure the commission of misdemeanors, and that such persons remain punishable as principals. If this be so, then the information in charging the aiding, abetting, and procuring of the perpetration of the felony sufficiently charged the aiding, abetting, and procuring of minor offenses included in the greater charge, and so by apt words charged Lawrence Wagner with acts which in law constituted him a principal to the misdemeanor of which he was convicted. The judgment as to Lawrence Wagner must therefore be affirmed.

Zoeth Wagner was convicted of being an accessory before the fact of stabbing with intent to wound. He filed a motion for a new trial, and a number of errors are assigned. The first is that the information is insufficient. The information, omitting the purely formal parts, is as follows: “That Otis Koontz, on the twenty-fifth day of April, A. D. 1893, in said county of York, in and upon one Casper Salmen, then and there being, unlawfully and maliciously did make an assault with a certain knife, which he, the said Otis Koontz, then and there in his right hand had and held, said Casper Salmen on his left breast and on the head near the top of him, the said Casper Salmen, the said Otis Koontz, then and there unlawfully, maliciously, and feloniously did strike, stab, cut, and wound, with the intent then and there of him, the said Otis Koontz, him, the said Casper Salmen, then and there to wound; and before said striking, stabbing, and wounding and felony were committed by the said Otis Koontz, to wit, on the twenty-fifth day of April, A. D. 1893, Lawrence Wagner and Zoeth Wagner, in said county of York, unlawfully, purposely, and feloniously did procure, incite, abet, and aid him, the said Otis Koontz, in the perpetration of the said striking, stabbing, cutting, and wounding and felony, in the aforesaid manner and form.” The defect which it is claimed exists in this information is that it fails to charge that Koontz “feloniously” made the assault, and that it cannot properly charge an offense against the accessory without sufficiently charging the principal. We do not think the information deficient in this respect. It will be observed that the information charges that Koontz unlawfully and maliciously made the assault, and unlawfully “and feloniously did strike, stab, cut, and wound Salmen with intent to wound him.” We think the latter language sufficiently charges the assault to be felonious, but, aside from that, we do not think the information would be bad for the total failure to use the word “felonious,” provided the offense was otherwise correctly described. The statute creating this offense is as follows: “If any person shall maliciously shoot, stab, cut, or shoot...

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7 cases
  • Casey v. State
    • United States
    • Supreme Court of Nebraska
    • October 21, 1896
    ...law, accessories to misdemeanors are unknown, those aiding or abetting in misdemeanors being punishable as principals. Wagner v. State, 43 Neb. 1, 61 N. W. 85. The act of aiding, abetting, or procuring the commission of a felony is both in this state and in Ohio (from whence our Criminal Co......
  • Smith v. State
    • United States
    • Supreme Court of Nebraska
    • September 22, 1904
    ...v. State, 17 Neb. 224, 22 N. W. 459;Kirk v. Bowling, 20 Neb. 263, 29 N. W. 928;Hodgkins v. State, 36 Neb. 161, 54 N. W. 86;Wagner v. State, 43 Neb. 5, 61 N. W. 85;Bartley v. State, 53 Neb. 328, 73 N. W. 744;Carrall v. State, 53 Neb. 439, 73 N. W. 939. Section 14 of the Criminal Code (Cobbey......
  • Cordson v. State
    • United States
    • Supreme Court of Nebraska
    • November 10, 1906
    ...to describe such crime in the language of the statute.” To the same effect are State v. Lauver, 26 Neb. 757, 42 N. W. 762,Wagner v. State, 43 Neb. 1, 61 N. W. 85,Chapman v. State, 61 Neb. 888, 86 N. W. 907, and State v. Davis, 70 Mo. 467. So the defendant's first contention must fail. The d......
  • Sandage v. State
    • United States
    • Supreme Court of Nebraska
    • January 23, 1901
    ...... accusation, * * * one indicted as a principal in a felony. cannot be convicted of being an accessory before the fact,. or, indicted as such accessory, cannot be found guilty as a. principal felon.' (1 Bishop, Criminal Law, sec. 803.) And. in Wagner v. State, 43 Neb. 1, 61 N.W. 85, IRVINE,. C., citing Wharton's Criminal Law, 208, asserts, as a. familiar rule, that no conviction as an accessory will lie. under an indictment charging one as principal, and vice. versa.". . .          It. follows from what has been said that the ......
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