Sage v. The State

• Decision Date: 15 October 1889
• Docket Number: 15,071
• Citation: 22 N.E. 338,120 Ind. 201
• Parties: Sage v. The State
• Court: Indiana Supreme Court

22 N.E. 338

120 Ind. 201

Sage v. The State

No. 15,071

Supreme Court of Indiana

October 15, 1889

Petition for a Rehearing Overruled Oct. 19, 1889.

From the Grant Circuit Court.

Judgment reversed.

W. H Carroll, A. E. Steele and J. A. Kersey, for appellant.

L. T Michener, Attorney General, S.W. Cantwell, Prosecuting Attorney, J. H. Gillett and H. J. Paulus, for the State.

OPINION

Mitchell, J.

The appellant was indicted and convicted as an accessory before the fact to the crime of murder.

The question for consideration is as to the sufficiency of the indictment after verdict to sustain a judgment as against a motion in arrest.

Concerning accessories we find the following in the code of criminal procedure: "Whenever the person accused is to be charged as an accessory before the fact, the following (or words of similar import) shall be inserted after the statement of the offence committed by the principal: 'And the said A. B. was accessory before the fact to the said felony' (here set forth how he aided and abetted the principal)." Section 1734, R. S. 1881.

With the exception that the above section of the statute was entirely disregarded, the indictment is unquestionably sufficient, and conforms with the approved precedents. Ulmer v. State, 14 Ind. 52.

Is the statute mandatory, or may its provisions be dispensed with by construction? The crime of murder is defined in section 1904, R. S. 1881, and section 1788, R. S. 1881, declares that "Every person who shall aid or abet in the commission of any felony; or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed,--shall be deemed an accessory before the fact." These two sections must be looked to in order to ascertain what shall constitute a person an accessory before the fact, to the crime of murder.

Section 1734 declares that in charging an accused with being an accessory before the fact, certain specified words--or words of similar import--shall be inserted in the indictment after the statement of the offence committed by the principal. All of these sections are, therefore, to be regarded in determining whether or not the indictment is sufficient. State v. Lay, 93 Ind. 341.

Statutes are supposed to express the will of the sovereign power of the State, and it is the plain duty of courts to give effect to the legislative will without scrutinizing the reasons which may have induced the enactment of an unambiguous statute. Interpretation and construction are allowable when different meanings may be attributed to the language employed, but when the language used in expressing the legislative will is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise. Endlich Statutes, section 4.

Courts may construe and interpret when construction and interpretation are necessary in order to discover the true meaning of a statute, but when the meaning is discovered, it is no more the province of the court to set aside a statute constitutionally enacted than it is the right of any other citizen to do so. Here is an express statutory requirement directing in terms that not only the specific acts from which the inference might be drawn that the accused was an accessory before the fact to the felony alleged to have been committed, should be set out in the indictment, but that the general statement that he "was accessory before the fact to said felony," or words of similar import, should be inserted. Under this statute, "Not only must all the circumstances essential to the offence be averred, but these averments must be so shaped as to include the legal characteristics of the offence." Whart. Cr. Pl. and Pr., section 153. These words characterize the offence in general terms, and are made by statute an essential element in the charge of being accessory to a felony. An indictment which wholly disregards this statutory requirement does not state facts sufficient to charge a public offence.

"Where the statute prescribes or implies the form of the indictment, it is usually sufficient to describe the offence in the words of the statute, and for this purpose it is essential that these words should be used. In such case the defendant must be specially brought within all...