Scharman v. State

• Decision Date: 29 December 1926
• Docket Number: 25452
• Citation: 211 N.W. 613,115 Neb. 109
• Parties: JOHN SCHARMAN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

211 N.W. 613

115 Neb. 109

JOHN SCHARMAN v. STATE OF NEBRASKA

No. 25452

Supreme Court of Nebraska

December 29, 1926

ERROR to the district court for Cherry county: BAYARD H. PAINE JUDGE. Affirmed.

AFFIRMED.

Ruby & Tucker, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

THOMPSON, J.

John Scharman, hereinafter called defendant, was informed against in the district court for Cherry county, under section 9603 Comp. St. 1922, as amended by chapter 104, Laws 1925, and section 9541, Comp. St. 1922, as amended by chapter 89, Laws 1923; the former making cattle stealing a felony regardless of the value of the cattle, the latter subjecting an aider, abettor, or procurer, whether present or not, to the same prosecution and punishment as his principal. The trial resulted in a conviction, and defendant was sentenced to the state penitentiary for a term of not less than three years nor more than ten years. To reverse this judgment, defendant prosecutes error to this court.

The information, excluding the formal parts, in substance, charges the defendant with the unlawful and felonious taking and carrying away of ten head of cattle, the property of Albert H. Metzger, on or about August 1, 1925, without such owner's consent, with the intent to convert such cattle to a use other than that of the owner; that such theft was so committed by such defendant by reason of his having, on or about July 31, 1925, procured William Mogle and Edison Herron to so steal, take and carry away such cattle, which they, at such time, place, manner, and form, did, in pursuance of such procurement. To this information a motion was filed by defendant asking that the state be required to separately state and number the crimes sought to be lodged against the defendant, also a motion requesting that the state be required to elect as to which crime it would prosecute, and also a demurrer to the information for the reason that it was void for duplicity, each of which in their order were overruled.

This brings us to a consideration of section 9541, Comp. St. 1922, as amended by chapter 89, Laws 1923. The uniform holdings of this court heretofore have been that, in order that an accessory before the fact could be held as principal, the evidence must show that he was personally present at the time of the theft, or in close proximity thereto, aiding and abetting therein. Lamb v. State, 69 Neb. 212, 95 N.W. 1050; Skidmore v. State, 80 Neb. 698, 115 N.W. 288; Guignon v. State, 101 Neb. 587, 163 N.W. 858; Neal v. State, 104 Neb. 56, 175 N.W. 669. This rule we uniformly followed up and until the session of our legislature of 1923, when such section 9541 was amended by chapter 89, Laws 1923, to read as follows: "Whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender." Before such amendment such section 9541 provided: "Whoever shall aid, abet, or procure any other to commit any felony, shall, upon conviction thereof, be imprisoned in the penitentiary for any time between the respective periods for which the principal offenders could be imprisoned for the principal offense; or, if such principal offender would on conviction, be punishable with death, or be imprisoned for life, then such aider, abettor, or procurer shall be punished with death or be imprisoned for life, the same as the principal offender would be"--thus making an accessory before the fact, if present aiding and abetting and procuring, a principal; if not present, but aiding, abetting, or procuring, guilty of a substantive offense, which could not be proved under a charge of stealing. That this distinction was without reason for its basis was indicated by us in Skidmore v. State, supra, where, in the course of the opinion, we said:

"In many states the old common-law distinction between principals and accessories before the fact has been abolished by statute. This seems to be a step in the general direction of reform by simplifying the law and abolishing technicalities; but the legislature of this state has seen fit to abide by the ancient and technical distinctions."

Thus it was indicated that such common-law rule should be abrogated by the legislature. We conclude that, in furtherance of this suggestion on the part of the court, chapter 89, Laws 1923 was enacted, and, further, that it was the intention of the legislature by such enactment to abrogate all distinction heretofore existing between such aider, abettor, or procurer and the one committing the act, and to provide that each should be prosecuted and punished as principals; that is, that the words "prosecuted and punished," as used in such section, mean that the same rule as to the information, conduct of the case, as well as the punishment, heretofore applicable to principals, should thereafter govern such aiders, abettors, or procurers, and that no additional facts need be alleged in an information against an accessory before the fact than are...