Casey v. State
| Decision Date | 21 October 1896 |
| Docket Number | 8421 |
| Citation | 68 N.W. 643,49 Neb. 403 |
| Parties | JOHN CASEY AND JAMES CASEY v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before STULL, J.
REVERSED.
E. W Thomas, F. Martin, and C. Gillespie, for plaintiffs in error:
One cannot be convicted as a principal in the commission of a crime under a charge of being an accessory before the fact. (Hill v. State, 42 Neb. 505; Walrath v State, 8 Neb. 80; Wagner v. State, 43 Neb. 2.)
The judgment should be reversed for error in the instruction relating to the alibi. (Wharton, Criminal Evidence [9th ed.] sec. 333; Wright v. People, 4 Neb. 410; Ballard v. State, 19 Neb. 619; Wasson v. Palmer, 13 Neb. 376; McPherson v. Wiswell, 19 Neb. 117; French v. State, 12 Ind. 670.)
A. S Churchill, Attorney General, George A. Day, Deputy Attorney General, and C. F. Reavis, for the state.
References: Noland v. State, 19 O. 131; Hartshorn v. State, 29 Ohio St. 635; State v. Rowland, 72 Iowa 327; People v. Lee Gam, 69 Cal. 552; People v. Levine, 85 Cal. 39; Martin v. State, 30 Neb. 507; Debney v. State, 45 Neb. 856; Wright v. State, 45 Neb. 44; Tracy v. State, 46 Neb. 362; Folden v. State, 13 Neb. 328; Dodge v. People, 4 Neb. 221.
The opinion contains a statement of the case.
At the March, 1896, term of the district court for Richardson county, John Casey and James Casey were convicted upon an information in which the former was charged as principal with the crime of robbery and the latter as an accessory thereto before the fact, and from which judgment they prosecute error to this court. The information mentioned, omitting caption and formal parts, is as follows: "That John Casey, late of the county aforesaid, on the 14th day of January, 1896, in the county of Richardson and state of Nebraska, in and upon one Leonard Jacobus, then and there being, unlawfully forcibly, and with violence, did make an assault, and him, the said Leonard Jacobus, in bodily fear then and there feloniously did put, and from the person and against the will of him, the said Leonard Jacobus, then and there feloniously, forcibly, and with violence did steal, take, and carry away one United States note, commonly called a 'greenback,' of the denomination of five dollars, and one gent's gold-filled watch of the value of fifteen dollars, the property of the said Leonard Jacobus, with intent then and there to steal, take, and carry away the said property; and that one James Casey, before said robbery was committed, to-wit, on the 14th day of January, 1896, in Richardson county and state of Nebraska, unlawfully, purposely, and feloniously did incite, procure, aid, and abet the said John Casey in committing the robbery aforesaid." Separate motions for a new trial were interposed in the court below, followed by separate petitions in error to this court.
It is first urged in behalf of James Casey that there is an entire failure of proof to sustain the charge upon which he was convicted. Indeed, the proposition is not disputed, and cannot be upon the record before us, that the only evidence connecting him, the said James Casey, with the alleged robbery tends to prove that he was present and participated therein as a principal. The question is therefore presented whether one charged as an accessory before the fact only can, under our statute, be convicted upon proof of guilt as a principal. It is, of course, understood that our discussion of the subject applies to felonies only, since, under the statute, as at common 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 Code was borrowed, an independent, substantive crime, in nowise dependent for its punishment upon the conviction of the principal. (Noland v. State, 19 Ohio 131.) In Hill v. State, 42 Neb. 503, 60 N.W. 916, and in Dixon v. State, 46 Neb. 298, 64 N.W. 961, it was held that sections 1 and 2 of the Criminal Code, defining accessories before and after the fact, are declaratory merely of the common law. In those states where, by statute, the distinction between principals and accessories has been abolished, the accused may be charged either as a principal or an accessory before the fact, or both, at the option of the pleader; but in other jurisdictions, where, as in this state, the rule of the common law has not been relaxed, one not present or actually participating in the commission of the crime alleged, but whose offense consists in the aiding, inciting, or procuring of its commission by the principal offender, should be charged as an accessory before the fact, and since, as has been said, "The law never condemns without 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, supra, 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, therefore, that the verdict and judgment is, as to James Casey, unsupported by the evidence, and that his separate motion for a new trial should have been sustained.
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