Henry v. State

Decision Date30 May 1921
Citation81 Fla. 763,89 So. 136
PartiesHENRY v. STATE.
CourtFlorida Supreme Court

Rehearing Denied June 22, 1921.

Error to Circuit Court, Suwannee County; M. F. Horne, Judge.

Annie Henry was convicted of manslaughter, and she brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

John F. Harrell, of Live Oak, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for the State.

OPINION

ELLIS, J.

The plaintiff in error was convicted of the crime of manslaughter upon an indictment which charged one Ethel Everett with the murder of Rosa Turner, and charged Annie Henry, the plaintiff in error, and Melvina Young as principals in the second degree. The language of the indictment, in so far as it connected the two latter named women with the alleged murder is as follows:

'And that Annie Henry and Melvina Young unlawfully and from a premeditated design to effect the death of said Rosa Turner were then and there unlawfully present, and did then and there unlawfully and from a premeditated design to effect the death of the said Rosa Turner and abet, assist counsel, hire, and procure the said Ethel Everett the felony aforesaid in manner and form aforesaid to do and commit. And so the said Ethel Everett, Annie Henry and Melvina Young did in manner and form aforesaid unlawfully and from a premeditated design to effect the death of said Rosa Turner kill and murder the said Rosa Turner.'

There was no motion to quash the indictment, nor demurrer interposed to it, in behalf of Annie Henry, but after verdict a motion in her behalf was made in arrest of judgment. The overruling of this motion constitutes the basis of the third assignment of error. As this assignment of error questions the sufficiency of the indictment, it is considered first, because, if the indictment is insufficient to that degree of imperfection which may be taken advantage of after verdict, the judgment should be reversed.

The three grounds of the motion which are argued attack the sufficiency of the indictment and the certainty of the verdict. The verdict is asserted to be uncertain because of the illegibility of the signature of the foreman.

As the verdict was presented in writing in open court, and certified to this court for inspection, it is before us. The argument of counsel upon this ground is that a verdict, to be certain, must be legibly signed by the foreman of the jury. If not legibly signed by the foreman, it is uncertain and void. If this argument be conceded to be sound, it is manifest that it depends upon the fact of the legibility of the foreman's signature. Without deciding the point presented by the assignment that illegibility of a signature to a verdict reduced to writing is an irregularity producing such uncertainty that it cannot be explained by reference to the record, and is therefore void, the correctness of which is not made clear by the argument submitted, we think that the signature of the foreman, if not perfectly plain, is by no means undecipherable. Nor do we decide that a signature of a juror as foreman is essential to the validity of a verdict in a case where the verdict is not a sealed one.

The other two grounds of the motion, which are argued together, attack the indictment as being fatally defective as to Annie Henry, in so far as it undertakes to charge her and Melvina Young as principals in the first degree. The word 'aid,' it is pointed out, is omitted from the indictment charging that Annie Henry was unlawfully present, and from a premeditated design to effect the death of Rosa Turner, then and there did unlawfully, and from a premeditated design to effect the death of the said Rosa Turner, 'abet, assist, counsel,' etc., the said Ethel Everett the felony to do and commit.

The indictment alleges that Annie Henry was unlawfully present, and did 'abet, assist, counsel, hire and procure' the commission of the felony. This language, while charging the offense of accessory before the fact to murder, in effect charges the accused with being a principal [81 Fla. 767] --assuming that the word 'aid' is not essential when the other words of the statute denoting assistance are used. See Albritton v. State, 32 Fla. 358, 13 So. 955; Montague v. State, 17 Fla. 662; Wharton's Crim Law, Sec. 211. Assuming that the omitted word 'aid' is not a fatal defect, in view that words of the same meaning were used, and which denoted confederacy, co-operation, concurrent effort, and assistance, the indictment charged all three of the defendants with murder in the first degree. See Wharton's Crim. Law, § 221; section 5008, Rev. Gen. Stats. 1920; Montague v. State, supra; 13 R. C. L. 729.

The principle is well established that, when several persons combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in furtherance or prosecution of the common design, and if several persons combine to do an unlawful act, and in prosecution of the common object a culpable homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish. The immediate injury from which death ensues is considered as proceeding from all who are present and abetting the injury done, and the actual perpetrator is considered as the agent of his associates. His act is their act, as well as his own, and all are equally criminal. See 13 R. C. L. 729; Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am. St. Rep. 17; Andrews v. People, 33 Colo. 193, 79 P. 1031, 108 Am. St. Rep. 76; Spies v. People, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423; People v. Gukouski, 250 Ill. 231, 95 N.E. 153, Ann. Cas. 1912B, 297; State v. Darling, 216 Mo. 450, 115 S.W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526; Phillips v. State, 26 Tex.App. 228, 9 S.W. 557, 8 Am. St. Rep. 471; Trim v. Commonwealth, 18 Grat. (Va.) 983, 98 Am. Dec. 765; also note, 68 L. R. A. 193.

In the case of Savage and James v. State, 18 Fla. 909, the court said that the principal in the second degree is one who is not only present when the crime is committed aiding and abetting the perpetrator, but also participating in the felonious design, or at least the offense must be within the compass of the original intention. See, also, McCoy v. State, 40 Fla. 494, 24 So. 485. The doctrine of these two cases diverges from the rule of the common law as stated above, and requires the showing by the state, in order to convict one of murder in the first degree, whether as principal in the first or second degree, that the defendant actually entertained a premeditated design to kill the deceased, or knew that the person being aided entertained such design.

As to a principal in the second degree to murder, the gravamen of the offense is the presence of the accused when the unlawful act is committed, advising and instigating the commission of the unlawful act. So in the state of Arkansas it was held that an indictment of an accessory for murder, which alleged in appropriate terms that the principals committed the murder, and charged that the defendant 'unlawfully, willfully, and feloniously did advise and encourage the principals to commit the murder in the manner and form aforesaid,' was sufficient. See Jones v. State, 58 Ark. 390, 24 S.W. 1073.

The exact point was not presented in the case, but exception was taken to the language in which the accessory was charged.

In Parker's Case, 2 Dyer, 186a, a form of indictment is given charging Parker, a clergyman, with the crime of accessory in the malicious procuring of the murder of an infant, which does not use the word 'aid' or 'aiding,' but used only the words 'counseled, commanded, procured, and abetted.' Parker was tried upon this indictment, found guilty and executed.

The language of the statute is as follows:

'Whoever aids in the commission of a felony, or is accessory thereto before the fact, by counseling, hiring or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.' Section 5008, Rev. Gen. Stats. 1920.

The words 'aid,' 'abet,' and 'assist' are synonymous terms. Soule's Dictionary of English Synonyms Webster's New International Dictionary. The defendant, therefore, could not have been misled or embarrassed in the preparation of her defense by the omission of the word 'aid,' when the...

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  • Wright v. State
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