Chambers v. State

• Decision Date: 23 October 1942
• Docket Number: 14143
• Parties: CHAMBERS v. STATE.
• Court: Georgia Supreme Court

22 S.E.2d 487

194 Ga. 773

CHAMBERS v. STATE.

14143

Supreme Court of Georgia

October 23, 1942

Syllabus by the Court.

Where as related to a particular felony the law prescribes the same punishment for an accessory before the fact that is prescribed for a principal, a person may be indicted and convicted as a principal on evidence showing that he was absent when the crime was committed, but had conspired with another or others to commit the same.

J B. G. Logan, of Homer, and Sam Kimzey and J. Herbert Griggs both of Cornelia, for plaintiff in error.

G. Fred Kelley, Sol. Gen., of Gainesville, and John E. Frankum, of Clarkesville, for defendant in error.

BELL Justice.

The Court of Appeals requested instruction on the following question: 'Where principals in the first and second degree and accessories before the fact are punishable alike, may one indicted for a felony as principal, under the Code, § 26-601, be convicted by a general verdict, as 'we the jury find the defendant guilty,' when the evidence shows that such one is absent when the crime was committed, but conspired with the principals to commit the crime?' Immediately following the question, the court cited the Code, § 26-602, and numerous cases.

From the phraseology, and the authorities cited, we understand the question to be simply this: Where as related to a particular felony the law prescribes the same punishment for an accessory before the fact that is prescribed for a principal, may a person be indicted and convicted as a principal on evidence showing that he was absent when the crime was committed, but had conspired with another or others to commit the same? As will be noticed, the question relates to felonies only, and not to misdemeanors. The law as we construe it requires an affirmative answer, notwithstanding some intimations and dicta to the contrary.

At common law, an accessory before the fact to a felony was deemed to have committed a crime separate and distinct from that committed by the principal, and could not be convicted of the latter or main offense merely because of his connection therewith as accessory. 1 R.C.L. 149-151, §§ 31-33, 8 R.C.L. 144, § 128; 22 C.J.S., Criminal Law, pp. 144, 442, §§ 80, 294. Accordingly, one who was a mere accessory could be convicted only upon an indictment charging him as such; for then as now a person indicted for one offense could not be convicted of a different offense, unless it was included in the crime alleged. Watson v. State, 116 Ga. 607, 43 S.E. 32, 21 L.R.A., N.S., 1. We are thus brought to inquire whether such common-law distinctioh has been abolished in this State.

Under the very ancient common law, a similar distinction existed between a principal in the first degree and a principal in the second degree; but, at least where the punishment was the same, this distinction appears to have been abolished long before our adopting statute of February 25, 1784, where by the law of England, as it applied to Georgia on May 14, 1776, with certain qualifications, was declared to be of force in this State. Cobb's Digest, p. 721; Boyd v. State, 17 Ga. 194, 196; Reg. v. Wallas, 1703, 1 Salk. 334, 91 Eng. Reprint, C.L. 360; 1 Chitty on Criminal Law 5th Ed., 256, 259; 1 Hale (1847), 436-437; 16 C.J. 125, 126, § 112; 22 C.J.S., Criminal Law, p. 152, § 85; 14 Am.Jur. 821, 831, §§ 76, 92.

Seemingly, however, the common-law distinction between an accessory before the fact and a principal was still in existence in that country at the time of our adopting statute; and while this statute 'adopted the English common law and the old English statutes * * * only where applicable to our people in this new country, and the circumstances surrounding them here' (Turner v. Thompson, 58 Ga. 268, 271, 24 Am.Rep. 497), for present purposes we may assume that the English rule as to an accessory did become a part of the Georgia law in virtue of such statute. The question, then, is whether such distinction continues to exist in this State; and this requires an examination of the early criminal statutes and penal codes, as adopted by our own law-making body.

Although the Code of 1863 is often referred to as the first official Code, it is correctly so described only in the sense that it was the first general Code. In the year 1811 the legislature adopted a criminal code, but it was not to become effective until proclaimed by the Governor after completion of 'a suitable penitentiary edifice.' No such proclamation was ever made, and the act adopting it was repealed in 1818. Ga.L.1811, p. 26; Ga.L.1818, 192; Lamar's Compilation of Georgia Laws, 1810-1819, pp. 540-552, 656.

Next came the Penal Code of 1816, as adopted by the General Assembly in December of that year. This Code also was to be proclaimed by the Governor; and it was proclaimed, although it remained of force for only about two years, the act in reference to it having been repealed at the same time as the act of 1811. Ga.L.1816, pp. 142-201; Prince's Georgia Digest 1821, p. 344. In the meantime, the legislature passed the act of December 20, 1817, 'to amend the penal Code of this State,' which act became of force on its approval by the Governor on that date. This act, while called an amendment, virtually constituted a new Penal Code, since it included most of the matter which had been embodied in the Code of 1816. If it did not altogether supersede the former Code upon its enactment, it became the only Code extant upon approval of the act of 1818, repealing the acts of 1811 and 1816, as stated above. Ga.L.1817, pp. 92-143; Lamar's Compilations, pp. 611-655; Prince's Georgia Digest 1821, pp. 344-377.

The Code of 1817, with amendments adopted from time to time, remained in force until passage of the act of December 23, 1833, entitled 'An act to reform, amend, and consolidate the penal laws of the State,' and providing that the existing Code should continue in effect until June 1, 1834. Ga.L.1833, pp. 143-217; Prince's Georgia Digest (1837), pp. 619-671; Cobb's Digest, pp. 778-845. Thus, the General Assembly adopted what was known as the Penal Code of 1833, and what has also been erroneously referred to as the first Code.

In 1850, the Honorable Howell Cobb, of Houston County, compiled a Code which is known as 'Cobb's Penal Code,' but that Code was never adopted by the General Assembly. Next came the Code of 1863, which embodied both criminal and civil law, and was adopted by the General Assembly as the first general Code of this State. Central of Georgia Railway Co. v. State, 104 Ga. 831, 836, 842, 31 S.E. 531, 42 L.R.A. 518.

Seemingly the Codes of 1816 and 1817 were considered as repealing the criminal common law, adopted by the act of 1784, only in so far as it was in conflict therewith; but the Code of 1833, being more comprehensive, has been regarded as an exclusive declaration of what acts would constitute criminal offenses in Georgia at that time; and so it has been said, that, since the adoption of that Code, 'it has been the uniform understanding that we had no crimes in this State save such as were defined and punished in the Code.' White v. State, 51 Ga. 285, 288; Thrower v. State, 117 Ga. 753, 757, 45 S.E. 126; Jenkins v. State, 14 Ga.App. 276, 278, 80 S.E. 688. Thus, in deciding the question propounded, it should be remembered that while the common-law terms 'principal' and 'accessory' are contained in our statute law, we have in this State, and have had at least since the act of 1833, only statutory offenses; also, that while these terms are defined in the Code substantially as they were understood at common law, the definitions were expressly enacted into law by our own legislature, and therefore are to be treated as statutory definitions.

Let us now examine the law as contained in the present Code, and then compare the earlier statutes in so far as they may shed light upon its meaning. For this purpose, it seems, we may proceed more easily by reversing the order of the foregoing citations; and this course will be pursued. The following provisions appear in the present Code: 'A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.' § 26-201. 'A person may be principal in an offense in two degrees. A principal in the first degree is the actor or absolute perpetrator of the crime. A principal in the second degree is he who is present, aiding and abetting the act to be done; which presence need not always be an actual immediate standing by, within sight or hearing of the act; but there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, and another keeps watch or guard at some convenient distance.' § 26-501. 'A principal in the second degree, except where it is otherwise provided, shall receive the same punishment that is provided for the principal in the first degree.' § 26-502. 'An accessory is one who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the act committed.' § 26-601. 'An accessory before the fact is one who, though absent when the crime is committed, procures, counsels, or commands another to commit same.' § 26-602. 'An accessory before the fact, except where it is otherwise provided, shall receive the same punishment that is prescribed for the principal in the first degree.' § 26-603. 'An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it, and harbors, assists, or protects the person charged with or convicted of the crime.' § 26-604. 'Accessories after the fact, except where it is otherwise provided, shall be punished as for a...