Fleming v. State

• Decision Date: 26 April 1926
• Docket Number: 25335
• Citation: Fleming v. State, 142 Miss. 872, 108 So. 143 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: FLEMING v. STATE. [*]
• Writing for the Court: COOK, J.

108 So. 143

142 Miss. 872

FLEMING v. STATE. ^[*]

No. 25335

Supreme Court of Mississippi

April 26, 1926

Division A

1. CRIMINAL LAW. Accessory before fact may be convicted of higher degree than was party who actually committed the felony, if latter, on trial of former, is shown guilty of higher degree (Code 1906, section 1026 [Hemingway's Code section 751]).

Accessory before the fact to felony, who, by Code 1906, section 1026 (Hemingway's Code, section 751), is declared principal may be convicted of a higher degree than that of which the party who actually committed the crime had previously been convicted, if on the trial of the accessory the other is proved to have been guilty of the higher degree.

2 HOMICIDE. Statement of defendant that he hoped S. would kill L. held admissible as lending color to, and explaining defendant's acts shortly thereafter.

Statement of defendant, when informed of threat of S. to kill L., that he hoped S. would kill L. held admissible as lending color to, and explaining, defendant's acts shortly thereafter in borrowing a gun and delivering it to S., and following L to point where S. killed him.

3. HOMICIDE.

Defendant, having been convicted of murder, may not complain of any error in instructions on manslaughter not misleading the jury.

HON. T. L. LAMB, Judge.

APPEAL from circuit court, Winston county, HON. T. L. LAMB, Judge.

Roosevelt Fleming was convicted of murder, and appeals. Affirmed.

Judgment affirmed.

Broom & Gober and L. H. Hopkins, for appellant.

The theory of the appellant is that every instruction given for the state defining murder and authorizing the finding of a verdict for murder and prescribing the penalty is error, because the defendant was an accessory--if he was anything--and in no event could he be convicted of a higher offense than the principal. Therefore, any instruction which authorized a conviction for murder and any instruction which defined murder were errors.

Section 751, Hemingway's Code provides that an accessory before the fact to a felony shall be deemed and considered a principal and shall be indicted as such and punished as such, but this section does not change the identity of an accessory to that of principal, but merely prescribes the method of procedure against them and the punishment for them.

If he is an accessory, then to what crime is he an accessory? He must of necessity be an accessory to the crime committed by the principal. The crime of the principal was manslaughter. "An accessory follows, like a shadow, his principal." 1 Bishops New Criminal Law, p. 406, sec. 666. "Without a guilty principal, there can be no accessory. Not even can the accessory be convicted of an offense in a degree higher than that of a principal." 1 Bishops New Criminal Law, p. 406, sec. 666, par. 2. See also Broom Leg. Max. (2 Ed.), 374, 4 Bl. Com. 36, etc.; Bowen v. State, 25 Fla. 645; Armstrong v. State, 28 Tex.App. 526; Territory v. Dwenger, 2 Mex. (New) 73; State v. Mosely, 31 Kan. 355; Buck v. Com., 107 Pa. 486; People v. Collins, 53 Cal. 185; Harper v. State, 83 Miss. 402, 35 So. 572; Thomas v. State, 73 Fla. 115, 74 So. 1; Osborn v. State, 99 Miss. 410, 52 So. 55; Trazzo v. People, 117 P. 150; People v. Jordan, 91 N.E. 482, 244 Ill. 386.

However, there is some authority to the contrary. State v. Patterson, 52 Kan. 335, 34 P. 784. But the great weight of authority is that the punishment of the accessory is limited to that of the principal.

Now we anticipate that the answer may be that the appellant was in fact a principal and not an accessory before the fact. Under the statute the punishment is the same in either case, but if it be argued that our reasoning does not apply because he is a principal and not an accessory, then he must stand or fall on the overt acts committed.

Presumptions are in favor of the appellant and not against him. He is presumed not to have aided and encouraged and incited him. At best and stated most strongly for the prosecution it is circumstantial evidence of an agreement or conspiracy or of aiding and abetting. The fact that appellant borrowed the gun is merely a circumstance connecting him with the crime. But circumstantial evidence will not warrant a conviction unless it excludes every other reasonable hypothesis. It is a reasonable explanation and hypothesis that he borrowed the gun for protection because of the murderous assault made on White by Wooten and because of the threats uttered by Wooten against White. Not only is it reasonable but it is uncontradicted and true. The amendment to the instruction for the defendant was in direct conflict with a most recent utterance of this court in Crawford v. State, 133 Miss. 147, 97 So. 534.

But it may be contended that inasmuch as this amended instruction was not used on account of the amendment, then no harm came of the error; but that position is untenable. The error is in this: Nowhere else in all of the instructions for the state and the defendant is there any instruction telling the jury that White must have been influenced by or known of the state of mind that possessed Fleming. This instruction without the amendment did tell them the law.

Now on what theory was it admissable to show by the witness Prisock that appellant told him that he, appellant, hoped White would kill Wooten? Evidently on the theory that it showed the intent of the appellant, because White could not have been encouraged and incited by something he did not hear and did not know existed, and the court said in the Crawford case that even if he was there with the intent to help if necessary, he was not an aider and abettor unless his intentions were known to the perpetrator of the crime. So far as the record shows, White, the perpetrator, did not know of his intentions; therefore, this was palpable error to admit this testimony. This error cannot be cured. The instruction without the amendment should have been given. It was error to refuse it without the amendment. It was error to admit this evidence, harmful, reversible error. The intent of the appellant was not material unless it was communicated to the perpetrator.

Inasmuch as the perpetrator was convicted of manslaughter, no conviction can be had of the appellant because there cannot be an accessory to the crime of manslaughter. "Manslaughter does not admit of accessories inasmuch as it is of the essence of the offense that it shall have been committed without premeditation or pre-arrangement." 13 R. C. L. 726; State v. Putnam, 18 S.C. 175, 44 Am. Rep. 569; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550.

J. A. Lauderdale, Special Assistant Attorney-General, for the state.

I. One who aids and abets the commission of a crime is a principal and should be indicted. Beck v. State, 69 Miss. 217; Wynn v. State, 89 Miss. 260; Kittrell v. State, 89 Miss. 670.

II. Appellant assigns as error the modification by the court of the fifth instruction asked for by defendant. This instruction as modified correctly stated the law. McCarty v. State, 26 Miss. 299; McCoy v. State, 91 Miss. 247; Dean v. State, 85 Miss. 40.

III. The testimony of Jess Prisock detailing a conversation between him and Shirley White with reference to White's trying to borrow a gun, his threats to kill deceased and also the conversation between Prisock and appellant with reference to White's threats and intentions to kill deceased were testified to before the jury over the objection of defendant and appellant assigns the introduction of this testimony as error.

White had made threats to Prisock that he would kill Wooten and these threats which were conveyed to appellant were competent to show that Fleming aided and abetted White to kill Wooten, with full knowledge that White intended to kill Wooten, that that was the purpose for which he wanted the gun. This was most certainly competent on the trial of Fleming to show his guilty knowledge that White wanted the gun to kill Wooten and for no other purpose. As appellant furnished the gun with the full and complete knowledge that it was to be used to commit murder, and murder was actually committed by the use of said gun, he is just as guilty under the law of murder as he would have been if he had actually shot and killed deceased himself. Cole v. State, 4 So. 577.

The instruction in the case at bar required the jury to find that White murdered Wooten before they could consider the guilt of appellant at all. In other words, this instruction requires the guilty principal before the accessory or aider and abettor can be adjudged guilty. The jury had to believe and find that White murdered Wooten and that Fleming was then and there aiding, abetting and assisting in said murder before it could find him guilty. Harper v. State, 83 Miss. 402; Dean v. State, 80 Miss. 40; Osborn v. State, 99 Miss. 410.

IV. The testimony in this case was sufficient to sustain the verdict of guilty. The fact that White, the man who actually did the killing, was convicted of manslaughter makes no difference in this case. He might have been convicted as charged or he might have been acquitted. The verdict in that case in no way affects the verdict in this case. The jury in this case would have to believe and find that White had committed murder, but it was in no way bound by the verdict of the jury in the White case. The proof in this case shows that Fleming aided abetted and assisted in this murder, and he is a principal indicted as such, proved guilty as such, and found guilty as such; and the guilt or innocence of his confederate or co-principal in no way affects his guilt or innocence. One who aids, assists, or encourages a murder is a principal and not an accessory, and his guilt in no way depends on the guilt or innocence, the conviction or...