Casey v. State
| Citation | 49 Neb. 403,68 N.W. 643 |
| Parties | CASEY ET AL. v. STATE. |
| Decision Date | 21 October 1896 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Section 1 of the Criminal Code is declaratory merely of the common-law rule by which an accessory before the fact is defined as one who aids, abets, or procures the commission of a felony by another in his absence, and does not refer to one who, being present at the commission of a crime, aids or assists therein.
2. In those jurisdictions where, as in this state, the rule of the common law has not been relaxed, one charged as a principal only cannot be convicted as an accessory, and one charged as an accessory before the fact cannot be convicted as a principal offender.
3. An alibi is a legitimate defense to a criminal charge, and should not be disparaged by the trial court, the weight or sufficiency of the evidence for that purpose being a question for the consideration of the jury.
4. It is error to instruct that the accused in a criminal prosecution is required to prove an alibi. It is sufficient to entitle him to an acquittal if the jury, from a consideration of all of the evidence, entertain a reasonable doubt of his presence at the commission of the crime charged, whether such doubt arise from a failure of proof on the part of the state, or from evidence submitted by the accused in his own behalf.
Error to district court, Richardson county; Stull, Judge.
John Casey and James Casey were convicted of robbery, and bring error. Reversed.E. W. Thomas, C. Gillespie, and F. Martin, for plaintiffs in error.
A. S. Churchill, Atty. Gen., Geo. A. Day, Dep. Atty. Gen., and C. F. Reavis, for the State.
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, A. D. 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 no wise 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...
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