Mulligan v. Com.

• Decision Date: 16 September 1886
• Citation: 1 S.W. 417,84 Ky. 229
• Parties: MULLIGAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W. 417

84 Ky. 229

MULLIGAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 16, 1886

Appeal from Grant circuit court.

H. Clay White, for appellant, James Mulligan. P. W. Hardin, for the Commonwealth.

BENNETT J.

The appellant was indicted, tried, and convicted, in the Grant circuit court, of the crime of detaining Margaret Ford against her will with the intent to have carnal knowledge with her. The indictment charges appellant alone with the commission of the crime.

The evidence of Mrs. Ford shows that, at about 12 o'clock at night, appellant, together with two other persons, all of whom she knew, came into her house, while she and her husband were in bed, and knocked out the light, and then one of them went to the bed and struck her husband one blow with an iron spike, as she supposed which knocked him senseless, and then one of them took her out of bed, and stood her up against the foot-board of another bed, and, with one hand upon her throat and the other around her waist, raped her; that they then left the house and returned after awhile, and another one of them raped her in precisely the same manner. She does not pretend to know which one of the men was guilty of this treatment of her, but the inference is strong that it was not the appellant. She is the only witness who testified in reference to this matter.

The lower court then instructed the jury, in substance, (1) that they must find the defendant guilty if they believed from the evidence, beyond a reasonable doubt, that he detained Mrs Ford, against her will, to have carnal knowledge with her himself, or that another man should have carnal knowledge with her; or, second, that, being in convenient distance for that purpose, he aided and abetted others to detain her, against her will, to have carnal knowledge with her. The appellant excepted to this instruction; and, the jury having found him guilty and fixed his punishment at confinement in the state penitentiary for the period of two years, and the appellant having moved the court to grant him a new trial upon the ground, among others, that the foregoing instruction was wrong, and the court having overruled his motion, he has appealed to this court.

The appellant complains of the second part of the instruction as erroneous. The appellant contends that, as he was indicted as the sole perpetrator of the crime, he could not be convicted as an aider and abettor. We shall devote our inquiries to that matter. Blackstone, in the second volume of his Commentaries, page 34, says: "A principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree, he who is present, aiding and abetting the fact to be done, which presence must not always be an actual and immediate standing by, within sight or hearing of the fact, but there may be also a constructive presence, as when one commits a robbery or a murder, and another keeps watch or guard at some convenient distance." It is true that they are both principals. The one who is the absolute perpetrator is principal in the first degree; the other, who aids and abets, is principal in the second degree. To make a man principal in the second degree there must be a principal in the first degree to do the principal fact,--to perpetrate the main fact. Failing in that, there can be no principal in the second degree. The principal in the first degree is the one who actually commits the criminal act. By this act he is guilty, without reference to the act of the principal in the second degree. It does not require the aid of his act to complete the guilt of the principal of the first degree, but the principal of the second degree cannot be guilty of crime unless the principal of the first degree actually perpetrates the act. By perpetrating it he is guilty, although the principal in the second degree fails to do his part; but, if the principal in the first degree fails in his part, the principal in the second degree, although he has done his, is not guilty. So one cannot be guilty of aiding and abetting the perpetration of a crime without first showing that the crime has been actually committed by another party. One cannot be aider and abettor of himself in the commission of a crime. Two or more persons must act. So one cannot be convicted as aider and abettor of a criminal act without proving that some one else participated by actually perpetrating the crime.

While it is well settled that two or more persons indicted as the actual perpetrators of a crime may be convicted as principals, although some of them were merely aiders and abettors, (see Thompson ...