Crawford v. State

• Decision Date: 08 October 1923
• Docket Number: 23351
• Citation: 133 Miss. 147,97 So. 534
• Court: Mississippi Supreme Court
• Parties: CRAWFORD v. STATE

97 So. 534

133 Miss. 147

CRAWFORD v. STATE

No. 23351

Supreme Court of Mississippi

October 8, 1923

Division A

(Division A.) January 1, 1920

CRIMINAL LAW. What constitutes "aiding and abetting" in commission of crime stated.

In order for one to aid and abet the commission of a crime, he must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime. Consequently being present at the commission of a crime, even with the intention of assisting in its commission, if necessary, does not make one an aider and abettor thereof unless his intention to render such assistance was known to the perpetrator of the crime.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Claiborne county, HON. E. L. BRIEN Judge.

James Crawford was convicted of manufacturing intoxicating liquor and he appeals. Reversed and remanded.

Reversed and remanded.

R. B. Anderson, for appellant.

Appellant was convicted of aiding and abetting the crime of manufacturing liquor. Would it not be necessary for the state in this case to show that the defendant did something more than taste the liquor and drink some of it?

The first instruction given the state tells the jury to convict if they believe from the evidence beyond a reasonable doubt that Crawford "aided others" in making liquor. What "others" was meant? Anybody? The jury may have thought that if he visited the still and tasted the liquor and said it was too hot, that he was making liquor himself at some other place. It his submitted that the instruction should have named the persons who were being aided or abetted.

Again, the instruction should have contained the word "feloniously." This word formed a part of the crime charged and should have been set out in the instruction. A man might well taste liquor or kick a chunk under a fire or even pour water in a barrel thoughtlessly, without being guilty of the felonious making of liquor. Dedeaux v. State, 87 So. 664.

A further instruction is in these words: "The court further instructs the jury that aiding and abetting is the offense committed by those who, although not direct perpetrators of a crime, are yet present at its commission, doing some act to aid the perpetrator. Such abetting may be manifested by acts, words, signs, motions or any conduct which unmistakably evinces a design to encourage, incite, or approve of the crime or even by being present with the intention of giving assistance, if necessary, though such assistance may not be called into requisition." This instruction should not have been given. In the first place it is an abstract proposition and not applicable to the facts of this case; at least, it is so broad that the jury was virtually left free to convict appellant even if he approved of making liquor. Harper v. State, 35 So. 572. This instruction told the jury they might convict if they believed the accused was present with the intention of "giving assistance, if necessary."

There is no evidence of his being present with the intention of giving assistance. The testimony of Dungan shows that he, Dungan, proposed to Crawford that they go to the still. The mere presence of a person at the scene of a crime, even with the intention of aiding if necessary, is not a felony unless there is some pre-arrangement with the perpetrator. Jones v. State (Ala.), 57 So. 31; 1 Wharton Criminal Law, par. 210. The instruction was further objectionable because it nowhere appears that the perpetrators of the offense were "encouraged, incited, or assisted" or that any "approval" of defendant had any influence or effect upon them.

S. C. Broom, assistant attorney-general, for the State.

The assignment of errors will be treated in order: (I.) That the evidence was insufficient to warrant a conviction. The still was there; the whiskey was made; Crawford was there witnesses testified that appellant sampled the liquor and commented upon its quality, thus indicating proprietorship or supervision over the proceedings; they also testified that he poured water on the coil, and some testified that he stirred the mash and kicked up the fire. There is ample evidence to show that on this occasion the defendant did aid and abet and assist materially in the manufactury of this three...