Guignon v. State
| Decision Date | 14 July 1917 |
| Docket Number | 20006 |
| Citation | 163 N.W. 858,101 Neb. 587 |
| Parties | CHARLES GUIGNON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hall county: JAMES N. PAUL, JUDGE. Affirmed.
AFFIRMED.
C. J Southard and J. L. Cleary, for plaintiff in error.
Willis E. Reed, Attorney General, and Charles S. Roe, contra.
HAMER J. ROSE, J., not sitting. SEDGWICK, J., LETTON, J concurring.
This is a proceeding in error by Charles Guignon from the judgment of the district court for Hall county, by which judgment he, the said Guignon, was on the 7th day of December, 1916, sentenced to imprisonment for an indeterminate period of not less than 3 years nor more than 15, and to pay the cost of prosecution. There was a charge against him and John Reed in said court, made by the county attorney of Hall county, Benjamin J. Cunningham, and under which he, said Guignon, was adjudged to be guilty and to suffer said imprisonment. The charge was: "That John Doe, whose real name is unknown, late of the county aforesaid (Hall) on the 16th day of October, A. D. 1916, in the county of Hall and the state of Nebraska aforesaid, in and upon one John Hicks, then and there being unlawfully, feloniously, and forcibly and by violence, did make an assault, and him, the said John Hicks, did put in bodily fear, and from the person and against the will of him, the said John Hicks then and there, forcibly and by violence, and feloniously did steal, take, and carry away one pocketbook of the value of one dollar ($ 1.00), one United States five-dollar bill ($ 5.00), and silver coins to the amount of three dollars ($ 3.00), all of the value of eight dollars and fifty cents ($ 8.50) of the property, goods, and chattels of the said John Hicks; and before said robbery and felony were committed by the said John Doe, whose real name is unknown, to wit, on the 16th day of October, 1916, Charles Guignon and John Reed unlawfully, purposely, and feloniously did procure, incite, abet, and aid the said John Doe, whose real name is unknown, in the perpetrating of said robbery in the aforesaid manner and form."
The record shows that the county attorney of Hall county, Benjamin J. Cunningham, and William Suhr appeared in court on behalf of the state, and that the defendant, Charles Guignon, appeared in person, accompanied by his counsel, J. L. Cleary and C. J. Southard, and making no objection to the charge, "thereupon the said defendant waived arraignment and the reading of the information filed therein, and to the charges of said information entered a plea of 'not guilty,' and states that he is ready for trial."
The evidence taken at the trial shows, as stated in the brief of plaintiff in error, that John Hicks, the witness who complains of being robbed, came to Grand Island Saturday night with the defendant, Jack Reed; that on the day following (Sunday evening), October 16, 1916, he went out in a taxi with Jack Reed and three other fellows, in the car of plaintiff in error, and which was driven by him; that, coming back to town, the witness rode in the back seat with Jack Reed and one other fellow, and Guignon was driving, and the same party rode with him in the front seat; that Guignon drove south off the main road, and then claimed he had a flat tire and stopped, and then all got out, and the fellow that was riding in the front seat with Guignon told witness to pull out his money, the fellow that had the gun, the fellow in the front seat with Guignon, said: "Pull out your money." Witness gave him his billbook and $ 2 and Jack Reed said: "Where is your pouch?" Witness stated that he was sure Guignon was standing there out of the car. John Reed, a witness for the state, testified that he and Hicks went to Harmony Hall in Guignon's car the night of the robbery; coming back, the witness, Hicks, and Smith were in the back seat, and Guignon and the short fellow in the front seat, Guignon driving; the car turned off the road about a half mile, and the short fellow "stuck us up;" that Guignon got out of the car and stayed right beside witness and Hicks.
The evidence which we have quoted is conclusive to the effect that plaintiff in error was driving the car and turned off of the road to town; that he stopped the car, claiming he had a flat tire, and got out with the others; that the robbery immediately took place in the actual presence of the plaintiff in error. None of this testimony is disputed. John Reed testified that he was one of the parties that was held up, and that he lost "80 cents, somewhere about 80 cents." Reed asked Guignon what the fare was to Harmony Hall, and Guignon said it was paid. The witness did not know whether they split the money or not. He was asked: " The county attorney, Benjamin J. Cunningham, testified that he talked with Guignon, who denied that there had been any shooting about the car that night. The county attorney testified that he asked Guignon why the shooting took place, and Guignon said: "Just to see him run." The county attorney testified that the affair happened in Hall county, Nebraska; that it was about a quarter of a mile west and a quarter of a mile south of Harmony Hall. William Pierce testified that Guignon had told him that he had a couple of "chumps," and he wanted Pierce to go with him; that he had told Guignon he did not want to go; Guignon said he was going to Harmony Hall. He also testified that Guignon had a gun in his coat pocket, and that he was going to get "these fellows out there." The witness testified that he had been asked by Guignon to go and see Jack Smith, and see if there was any way out of it. He wanted to know if the witness could get Jack Smith out of the road. No testimony was offered for the defense.
The verdict rendered, omitting the title and the term of the court, is as follows: (
Guignon, by his counsel, C. J. Southard and J. L. Cleary, filed a motion for a new trial, which was overruled.
The defendant was tried and convicted on the statutory charge of procuring, aiding, and abetting another in the commission of a felony. Because, under the evidence, he was present at the time of the commission of the crime, which would render him guilty as principal, it is argued that he was illegally convicted. While it is true that this court has held that procuring, aiding, and abetting a crime and the commission of it are distinct offenses, instead of being different degrees of the same offense, and that one cannot be charged with one offense and convicted of the other, it has never held that where one is charged with aiding and abetting a felony, or, as at common law, with being an accessory before the fact, and from the evidence he is found guilty as charged, the mere fact that the evidence not only shows him an aider and abettor, but goes further and shows him present when the offense was committed, and therefore guilty as principal, would operate to make the charge bad or the conviction void. In other words, the fact that a defendant is guilty of two offenses ought not to release him from the charge of being guilty of either. In Casey v. State, 49 Neb. 403, 68 N.W. 643, the defendant was charged as accessory before the fact and convicted. The case was reversed, not because the defendant was present and may have been guilty as principal, but because, as stated by Judge Post in his opinion, there was no evidence whatever of any act on the part of the defendant as aider or abettor of the crime charged. In other words, it was held that defendant could not be charged as accessory and convicted as principal. James Casey was charged with inciting, procuring, aiding, and abetting John Casey to commit the robbery charged. The only evidence against James Casey tended to show him guilty as a principal. There was therefore no evidence to sustain his conviction. The case consequently is not in point.
Section 8579, Rev. St. 1913, provides: "Whoever shall aid, abet or procure any other person to commit any felony, shall, upon conviction thereof, be imprisoned in the penitentiary for any time between the respective periods for which the principal offenders could be imprisoned for the principal offense; or, if such principal offender would, on conviction, be punishable with death, or be imprisoned for life, then such aider, abettor, or procurer shall be punished with death or be imprisoned for life, the same as the...
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