People v. Bliven

• Decision Date: 15 January 1889
• Parties: PEOPLE v. BLIVEN.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 79

19 N.E. 638

PEOPLE

v.BLIVEN.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, Second department.

Courtland H. Bliven was convicted of the crime of abortion. The conviction was affirmed at general term, and defendant appeals.

Abraham Suydam, for appellant.

John F. Clarke, Asst. Dist. Atty., for the People.

PECKHAM, J.

Section 294 of the Penal Code provides as follows: ‘ Abortion Defined. A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child with which she is pregnant, either (1) prescribes, supplies, or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug, or substance; or (2) uses, or causes to be used, any instrument or other means,-is guilty of abortion, and is punishable by imprisonment in state-prison for not more than four years, or in a county jail for not more than one year.’

Under that section the defendant was indicted by the grand jury of the county of Kings for having feloniously, etc., used a certain instrument upon the prosecutrix, with intent thereby feloniously and unlawfully to procure her miscarriage; the same not being then and there necessary to preserve her life, or that of the child with which she was pregnant.

The proof in the case showed that at the time of the commission of the act the defendant was absent, but that he had counseled, induced, and procured the crime to be committed. The question was properly raised on the trial, and the claim was made on the part of the counsel for the defendant, that he could not be convicted of the crime alleged in the indictment, because the proof showed that he was absent at the time of its alleged commission, and hence there was not, within the meaning of the Code, a sufficient allegation in the indictment of the facts constituting the crime as proved. The objections were overruled, and the defendant was convicted and sentenced. Upon appeal the conviction was affirmed by the general term of the supreme court, and from the judgment of affirmance the defendant appealed here.

The question is here fairly presented whether, upon an indictment which alleges the doing of an act by the defendant constituting the crime, he can be convicted upon proof that, though absent at the time of the actual commission of the crime, he nevertheless aided in, advised, and procured its commission.

Before the adoption of the Code, and in cases of felony, there would have been no doubt that a conviction could in cases of felony, there would have this, where the proof was the same as in this case. It is claimed, however, that section 29 of the Penal Code works a change in the law upon this subject. That section is as follows: ‘A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime, is a principal.

It is now argued that by reason of this section the rule of law has been changed, and that, upon an indictment alleging that the defendant committed the crime named in the indictment, he may be convicted upon proof that, though absent, he advised and procured its commission. The purpose and effect of the section are to abolish the distinction which heretoforeexisted in cases of felony between a principal and an accessory before the fact; the principal being present, and either committing the act himself, or aiding in its commission, and the accessory before the fact being absent, but counseling and procuring its commission. The case of an accessory before the fact has now, by means of this section, been made the case of a principal, and he occupies, therefore, the same position in the case of felony as such an individual heretofore occupied in cases of treason and of misdemeanor.

In treason, it has always been the law that there were no accessories, either before, or, with one or two minor exceptions, after the fact. 1 Hale, P. C. 233; 1 East, P. C. p. 93, § 35; 1 Bish. Crim. Law, § 681; 1 Whart. Crim. Law, § 131. In regard to misdemeanors, the same rule obtains, and, when one sustains in misdemeanor a relation which in felony would make him an accessory before the fact, he is treated as a principal, and the indictment charges him as such, and unless the pleader chooses it does not mention that the act was committed by another. 1 Bish. Crim. Law, §§ 685, 686. The rule, therefore, in cases of felony, can scarcely be said to exist simply because of the greater gravity of the offense charged; for as it does not exist in treason, which, according to the English law, is the highest crime known to it, the gravity of the charge cannot be the reason for its existence in cases of felony. It is somewhat difficult to comprehend the reason for the difference in the rule between cases of treason and misdemeanor on the one hand, and felony on the other; nor can the smallness of the offense in cases of misdemeanor be the reason for the existence of the rule. For by the common law many cases which are made felony in this country by statute were but misdemeanors; the punisment, however, in many of them extending to long terms of imprisonment, and also to the infliction of corporal punishment.

As late as the case of Reg. v. Greenwood, 9 Eng. Law & Eq. 535, which was a case where the prisoner was indicted for uttering counterfeit coin, the crime being a misdemeanor, the rule was applied. The indictment in that case charged the prisoner with knowingly uttering a counterfeit shilling. The proof was that it was uttered by another person in the absence of the prisoner, and the court held that the prisoner was properly convicted under the indictment. The conviction was held good on the ground that the proof showed that the prisoner, although absent when the coin was uttered, was engaged in the common purpose of uttering counterfeit shillings, and, the act of uttering the coin in question having been procured and aided by the prisoner, the case stood the same as if it were his own act. Five judges delivered opinions seriatim, and, although they are exceedingly brief, the case shows that it was carefully examined, and must be regarded as high authority upon the question decided.

Another case is that of Reg. v. Clayton, 47 E. C. L. 128. The indictment charged the prisoners with an attempt to set fire to a certain malt-house, and they were jointly charged in the indictment with having made such attempt. The proof showed that Mooney was not present when the other prisoner lighted the fire, but it tended also to show that, though absent, she knew beforehand that the fire was to take place. The question was raised on the part of the prisoner, Mooney, that she could not be convicted under the indictment, as it charged her with the actual attempt to burn the malt-house, while the proof showed that she was absent, although privy to the act. The objection was overruled, and it was stated by the learned judge in summing up that in misdemeanors and in treason all who take part in the crime are principals, and that the prisoner, Mooney, might be convicted under the indictment, which alleged that she herself attempted the crime, if, though absent, the jury believed that she counseled and encouraged the other prisoner to set the fire.

The same rule has been held to exist in this state. In Ward v. People, 6 Hill, 144, the indictment charged the prisoner with having stolen 25 pounds of butter. On the trial he gave evidence tending to prove that he did not himself steal the butter, but sent another person to steal it, and that they afterwards divided it between them; and he requested the court to charge the jury that if the butter was thus stolen he was simply an accessory, and could not be convicted as a principal for the crime of petit larceny. The court refused, and charged that if the other person stole the butter in the prisoner's absence, by his advice and procurement, he might be convicted under the indictment as a principal, as there were no accessories in petit larceny. The supreme court held the conviction proper, (see Ward v. People, 3 Hill, 395,) and the conviction was affirmed by the court of errors; Chancellor WALWORTHwritingthe opinion. The doctrine was there stated that those who procure, aid, or advise in the commission of the offense of petit larceny are principals, and that the same rule obtains in cases of treason.

In England, by the statute 11 & 12 Vict. c. 46, § 1, for the purpose, as is stated in the preamble, of relaxing the technical strictness of criminal proceedings, and to insure the punishment of the guilty without depriving the accused of any just means of defense, it was enacted that, ‘if any person shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes, made or to be made, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon.’ The same provision is reiterated in 24 & 25 Vict. c. 94, § 1.

It would seem that the provisions of these statutes established the same rule in cases of felony as in cases of treason and misdemeanor, and that an indictment against a person who before the statute would have been regarded as an accessory before the fact in a case of felony would now charge the crime against him in precisely the same manner as if he were a principal felon; and a person charged with the commission of a felony would, under those statutes, be convicted on proof showing him guilty as an accessory before the fact. It has indeed been so decided.

In the case of Reg. v. Manning, 2 Car. & K. 892, at 904, 61 E. C. L., same pages, it appeared that two persons who were husband and wife were charged as principals in...