Foster v. Commonwealth, Record No. 2522.

• Decision Date: 19 January 1942
• Docket Number: Record No. 2522.
• Citation: 179 Va. 96
• Court: Virginia Supreme Court
• Parties: DELBERT FOSTER v. COMMONWEALTH OF VIRGINIA.

Page 96

179 Va. 96

DELBERT FOSTER v. COMMONWEALTH OF VIRGINIA.

Record No. 2522.

Supreme Court of Virginia, Richmond.

January 19, 1942.

Present, All the Justices.

1. ACCOMPLICES AND ACCESSORIES — Punishment — Accessory and Aider or Abettor Punishable as Principal for Misdemeanor. — In a prosecution for a misdemeanor it is a matter of no importance whether accused was a principal, an accessory, or an aider or abettor, since the punishment in each instance is the same.

2. ACCOMPLICES AND ACCESSORIES — Definitions — Definition of Accessory. — An accessory is one not present at the commission of the offense, but who is in some way concerned therein, either before or after, as contriver, instigator or adviser, or as a receiver or protector of the perpetrator.

3. ACCOMPLICES AND ACCESSORIES — Definitions — Aider or Abettor. — An aider or abettor is one who is present actively or constructively.

4. ACCOMPLICES AND ACCESSORIES — Definitions — Principal in Second Degree Defined. — A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.

5. ACCOMPLICES AND ACCESSORIES — Definitions — Aider and Abettor — Liable as Principal. — Every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means, countenances or approves the same is, in law, assumed to be an aider and abettor, and is liable as principal.

6. ACCOMPLICES AND ACCESSORIES — Aider and Abettor — Mere Presence Insufficient. — Mere presence when a crime is committed is not sufficient to render one guilty as aider or abettor. There must be something to show that the person present and so charged, in some way procured, or incited, or encouraged, the act done by the actual perpetrator.

7. ACCOMPLICES AND ACCESSORIES — Evidence — Whether One Aids and Abets May Be Determined by Circumstances. — Whether a person does in fact aid or abet another in the commission of the crime is a question which may be determined by circumstances as well as direct evidence.

8. ACCOMPLICES AND ACCESSORIES — Aider and Abettor — Necessity for Overt Act or Share in Criminal Intent. — To constitute one an aider and abettor, he must be guilty of some overt act, or he must share the criminal intent of the principal or party who commits the crime.

9. ACCOMPLICES AND ACCESSORIES — Evidence — Jury May Infer Assent from Presence without Disapproval. — Notwithstanding the rules as to the nonliability of a passive spectator, proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in conection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.

10. CRIMINAL LAW — Burden of Proof — How Commonwealth's Case May Be Established. — In a criminal prosecution, the Commonwealth must make out its case, but that case may be established both by direct evidence and by known and proven conditions.

11. DISORDERLY HOUSES — Keeping Houses of Ill Fame — Evidence Sufficient to Support Verdict — Case at Bar. — In the instant case accused was convicted of keeping a house of ill fame. The evidence showed that the premises used was the upper flat of a building of which a third party appeared to have been the lessee; that accused and his wife had come from West Virginia to this house, where accused's wife followed her vocation up to the moment of the raid during which accused was arrested, and that accused had lived in the house until the time of his arrest. Accused contended that he had followed his wife from West Virginia to persuade her to return with him to West Virginia; but in his room was found a drawer packed with freshly laundered shirts, together with the average wardrobe of a man permanently located. The room in which accused lived adjoined one occupied by his wife with a communicating door, bolted and locked on accused's side.

Held: That the evidence was sufficient to support the verdict.

Error to a judgment of the Hustings Court of the city of Roanoke. Hon. J. L. Almond, Jr., judge presiding.

The opinion states the case.

S. R. Price and W. E. Henson, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Carrington Thompson, Special Assistant, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

The defendant was arrested on a warrant charging him with keeping a house of ill fame, etc. He was convicted by the trial justice, fined $200.00 and sentenced to jail for ninety days. He appealed to the Hustings Court of Roanoke. A jury found him guilty and fixed his punishment at a fine of $100.00 together with a nine months' jail sentence. That verdict the court approved, and his case is now before us on a writ of error.

The premises so used is the upper flat of a building on Salem avenue in Roanoke. One Margaret Bono appears to have been the lessee. We shall not stop to discuss the evidence showing the usage to which it was put. That it was used for the purposes indicated in the warrant is plain.

The defendant, Delbert Foster, and his wife, Mabel, lived in West Virginia. About four weeks before the night of the raid, February 16, 1941, she came to Roanoke, entered this house of prostitution and was following her vocation up to the very moment when the police broke in upon her. Her husband followed her in about three weeks, went to the house where she was and lived there until the time of his arrest, which was when the raid was made. He...