Schwartz v. State
| Decision Date | 21 January 1936 |
| Citation | 185 A. 233,37 Del. 484 |
| Court | Supreme Court of Delaware |
| Parties | WILLIAM SCHWARTZ, Defendent Below, Plaintiff in Error, v. THE STATE OF DELAWARE, Plaintiff Below, Defendant in Error |
Supreme Court, No. 6, June Term, 1934. Writ of Error to the Court of General Sessions for New Castle County.
In this case William Schwartz was indicted for arson (see Laws of Del., Vol. 36, Ch. 273) and convicted by a jury. Many questions were raised on this Writ of Error but, in view of our conclusion, it is only necessary to consider one. It is conceded that the evidence clearly established the fact that Schwartz was not present when the alleged burning was committed, but the evidence on the part of the State showed that, prior to the burning, he had advised and procured a co-defendant to commit the burning itself.
The sole question to be here considered is whether a defendant who was clearly not a principal at common law but an accessory before the fact, can be indicted and convicted as a principal under the Delaware Statute. Section 4806 of the Revised Code of Delaware of 1915 provides:
The judgment is reversed.
James R. Morford (of Marvel, Morford, Ward and Logan) for Defendant Below.
P Warren Green, Attorney-General, and Robert H. Richards, Jr., Deputy Attorney-General, for the State.
OPINION
In order to clearly determine the purpose and effect of the Statute it may not be improper to briefly consider the condition of the law prior to its passage.
At the early common law only one degree of principal was recognized in the commission of a crime. It was subsequently recognized, however, that the offense of one who was present but who was not the actual perpetrator of the crime itself was to be considered in a different light from the offense of one who was not present, even though he had aided or counseled the commission of the act. From that time the participants in crime at common law may generally be classified as (1) principals (a) in the first degree (b) in the second degree (2) accessories (a) before the fact (b) after the fact. Principals in crime included all persons who were present (actually or constructively) at the commission of the wrongful act and participated therein, either directly or indirectly, and on the nature of this participation depended the degree of the offense. There was, as a practical matter, little distinction between the two degrees of principal, and the classification of principal in the second degree seems to have been created because, prior to its creation, one who was present but not the actual perpetrator of the crime was considered as an accessory before the fact and could not be tried until the principal had been apprehended and convicted.
Accessories included persons who, in some manner, were connected with crime, either before or after its perpetration, but were not actually present at the time the crime was committed. It will be seen, then, that the offense of being an accessory was derivative and dependent upon the existence of a principal.
It seems to be entirely clear that distinctions between principals and accessories existed only in cases of felony and did not exist in cases of treason or in cases of misdemeanor, but in these latter offenses all participants were considered as principals and could be prosecuted as such. The reasons for the distinctions between treasons and misdemeanors, on the one hand, and felonies, on the other, as suggested by 4 Blackstone Comm. 36, have been declared to be unsatisfactory, People v. Bliven, 112 N.Y. 79, 19 N.E. 638, 8 Am. St. Rep. 701. It is not material for us to pause to consider the reasons for the distinction--it is sufficient that the distinction itself was firmly established.
The pertinent common law sustained no material change by virtue of our Colonial Statutes. In 1719 the penalty of death was prescribed for accessories where the principal was convicted of mayhem or other capital crime; provision was also made for the punishment of accessories receiving stolen goods and for those cases where the accessory lived in a different county from the principal offender (Volume 1, Laws of Delaware, 68-74). These are, substantially, all of the statutory provisions prior to the original enactment of the Statute we are now considering.
In 1824 a Revised Code for Delaware was in course of preparation. Hon. Willard Hall, then United States District Judge, was engaged to prepare a codification of the criminal laws for inclusion in this new revision. This was done, and Judge Hall reported the new Criminal Code in 1826 (House Journal, Page 113). This criminal codification was adopted on February 8, 1826, and is found in 6 Delaware Laws, Pages 708-747.
Section 1 of this Act consists of a long statement of offenses and their punishment. Section 2 provides, inter alia, "All offenses indictable at common law and not provided for by this or some other Act of the General Assembly, shall be deemed misdemeanors" (See Section 4720, Revised Code of 1915). Section 3 of the Act of 1826 included, substantially, the exact words now found as Section 4806 of our present Code, which we are now considering.
One purpose of Section 3 of the Act of 1826 (Section 4806) seems quite clear. Being an accessory was not made a substantive offense by Section 1; Section 2 had made all offenses, not specifically mentioned, misdemeanors; Section 3 then said that every accessory should be deemed equally guilty with the principal offender and punished in the same manner. In the absence of Section 3 all accessories would have been merely guilty of misdemeanors. Section 3 made of accessaryship before the fact an independent substantive offense, gave it the name of "accomplice" and, by providing that an accomplice could be "prosecuted, tried and convicted without the conviction, trial or indictment of the principal," it removed the derivative and dependent feature of the common law by which an accessory could only be tried after the trial and conviction of the principal. At common law the principal was tried before the accessory and the accessory could be tried first only with his consent, and, even where the principal and accessory were tried together, it was the duty of the jury to first determine the guilt of the principal. 18 Columbia L. Rev. 471.
There is no intent evidenced in the Statute to make the accessory a principal. Indeed, it would have been curious if such had been the case. While modern criminal legislation has, in many jurisdictions, made an accessory a principal and authorized prosecution as such, yet this desirable statutory change did not manifest itself until long after 1826. There is no evidence that Delaware originated the advanced thought in these prosecutions or that its Statute of 1826 was intended to have such effect. The change was not made in England until 1848 (11 and 12 Victoria, c. 46) or in Pennsylvania until 1860, when that state adopted the English Act. While we have not examined the Statutes of American jurisdictions to ascertain the date of their first enactment, yet the Statutes of upwards of thirty such jurisdictions have been reviewed. These all, in varying language, provide that the accessory shall be considered as a principal and expressly stipulate that he may be indicted, tried, convicted and punished in all respects as a principal or use some...
To continue reading
Request your trial
-
Moffat Tunnel Improvement District v. United States Fidelity & Guaranty Co.
...185 A. 186 37 Del. 473 THE MOFFAT TUNNEL IMPROVEMENT DISTRICT, a corporation created by and existing under special Act of the State of Colorado, v. THE UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation organized and existing under the laws of the State of Maryland ... ...
-
Benoit v. State
...were at most only accessories to a crime committed by another, and could not be convicted as principals under the rule of Schwartz v. State, 37 Del. 484, 185 A. 233. In this Court defendants are represented by other counsel. It is not clear to us that the objection below is renewed here. In......