Kauz v. State
| Decision Date | 17 October 1929 |
| Parties | KAUZ v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Dade County; Tom Norfleet Judge.
Sue A Kauz was convicted as an accessory before the fact in the crime of arson, and she brings error.
Reversed and remanded, with directions.
Syllabus by the Court
Information styled 'Information for arson and accessory to arson,' and charging defendant with aiding, counseling and procuring burning of house by codefendants, charged defendant as accessory before the fact. Information having caption styled 'Information for arson and accessory to arson,' charging codefendants with crime of arson, and charging that defendant did then and there aid, counsel, and procure burning of dwelling house by codefendants, charged defendant as an accessory before the fact.
Where accessory is indicted in common-law mode, common-law rules control regarding trial and punishment. Where accessory before the fact is not indicted under Comp. Gen. Laws 1927, § 7111, as for a substantive offense, but is indicted in common-law mode, which is permissible under statute common-law rules control as to trial and punishment of accessory.
Under information for arson, charging accessory jointly with principals, accessory was charged with dependent offense as at common law and not with substantive offense under statute (Comp. Gen. Laws 1927, § 7111). Where accessory before the fact was charged in information for arson jointly with principals, charge was of dependent offense as at common law and not of substantive offense under last clause of Comp. Gen. Laws 1927, § 7111.
Where accesssory was charged with dependent offense as at common law and nolle prosequi was entered against principals, accessory could not be convicted (Comp. Gen. Laws 1927, § 7111). Where accessory before the fact was charged with dependent offense as at common law and not with substantive offense under Comp. Gen. Laws 1927, § 7111, and county solicitor entered nolle prosequi against principals and they were discharged, and no judgment of conviction could be thereafter entered against principals, no valid judgment of conviction could be entered against accessory.
Van C. Swearingen and Louis Allen Harris, both of Miami, for plaintiff in error.
Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for thE state.
In a joint information filed against John Ellison, Roy E. Rogers, and Sue D. Kauz, the two defendants first named were charged as principals in the crime of arson, and Sue D. Kauz, who alone is plaintiff in error here, was charged as accessory before the fact.
The state contends that plaintiff in error is charged as principal in the second degree. After charging the guilt of Ellison and Rogers as principals, the information further charges:
'And the County Solicitor aforesaid, under oath, further information makes that one Sue D. Kauz did then and there aid, counsel and procure the burning of the said dwelling house in the manner and form aforesaid, by the said John Ellison and Roy E. Rogers, contrary to the form of the Statute. * * *'
An accessory before the fact is one who, though absent at the time of the commission of an offense, does nevertheless procure, counsel, command, or abet another to commit such offense. A principal in the second degree is one who is present aiding and abetting at the commission of a felony. Albritton v. State, 32 Fla. 358, 13 So. 955. The presence at the crime of a principal in the second degree may be either actual or constructive. Pope v. State, 84 Fla. 428, 94 So. 865.
The state contends that, because the information charges that Sue D. Kauz did 'then and there' aid and counsel, it is equivalent to the charge she was present and actually or constructively at the commission of the crime. We cannot accept this construction of the charge against Sue D. Kauz contained in this information.
The words 'then and there' as used in an information are words of reference. When time and place have once been named with certainty, it is customary to refer to them afterwards by these words. As to the principals, Ellison and Rogers, this information charges that the offense was committed on a named date in Dade county, Fla. When it is charged later in the same count that Sue D. Kauz did 'then and there' aid, counsel, etc., these words refer to the date and the county where the offense is alleged to have been committed, namely, Dade county, for the purpose of fixing time and venue. It is not sufficient as a charge that Sue D. Kauz was 'present' aiding and abetting at the locality in Dade county where the offense was committed. The effect of the language is that the principals committed arson on a named date in Dade county, and that Sue D. Kauz 'then and there'--that is, on said date and in Dade county--did aid, counsel, and procure the said crime to be committed. The question of presence, actual or constructive, is the determinative factor between an accessory before the fact and a principal in the second degree. Such a vital element of distinction must be plainly charged, if it is intended to charge the defendant as a principal in the second degree. That it was the intention of the county solicitor to charge plaintiff in error as an accessory before the fact and not as a principal in the second degree is further indicated by the caption of the information which is styled 'Information for arson and accessory to arson.' Of course, the caption would not be controlling as against the body of the information, but it is significant. Neither did the state undertake to prove the presence, actual or constructive, of plaintiff in error at the scene of the crime so as to establish her guilt as a principal in the second degree.
Section 7111, Comp. Gen. Laws 1927, provides that an accessory before the fact may be indicted and convicted either with the principal felon or after his conviction, 'or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice.' The effect of that section is that, although the last clause of the section makes the offense of accessory before the fact indictable as a substantive offense, and triable without reference to whether the principal has been convicted or not, the first clause of the section clearly shows that the common law as to the indictment, trial, and sentencing of accessories before the fact has not been repealed, and, if the accessory is not indicted as for a substantive offense, but is indicted in common-law mode, the common-law rules control as to the trial and punishment of the accessory. Ex parte Bowen, 25 Fla. 214, 6 So. 65; Montague v. State, 17 Fla. 662; Brown v. State, 82 Fla. 306, 89 So. 873.
The charge against Sue D. Kauz as an accessory before the fact in the information before us is of the defendant offense as at common law, and not of a substantive offense under the last clause of section 7111, supra. She is charged jointly with the principals, and the information follows the usual common-law form of allegation for charging one defendant as principal and the other with the dependent offense of being accessory before the fact. Ex parte Bowen, supra. Where, as here, the charge is of the dependent offense according to the mode of the common law, the conviction of the principal is an essential prerequisite to a judgment of guilt against such accessory. Bowen v. State, 25 Fla. 645, 6 So. 459. 'Conviction' of the...
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...conviction of the principal felon had to precede or accompany that of one charged as being an accessory before the fact. Kauz v. State, 1929, 98 Fla. 687, 124 So. 177. Florida Statutes, Section 776.01, F.S.A. provides that one who aids in the commission of a felony, or is accessory thereto ......
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