Skidmore v. State

• Decision Date: 20 February 1908
• Docket Number: 15,238
• Citation: 115 N.W. 288,80 Neb. 698
• Parties: JOSEPH SKIDMORE v. STATE OF MEBRASKA
• Court: Nebraska Supreme Court

115 N.W. 288

80 Neb. 698

JOSEPH SKIDMORE v. STATE OF MEBRASKA

No. 15,238

Supreme Court of Nebraska

February 20, 1908

ERROR to the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Reversed.

REVERSED.

R. R Dickson, for plaintiff in error.

W. T Thompson, Attorney General, and Grant G. Martin, contra.

OPINION

LETTON, J.

The defendant, Joseph Skidmore, was charged with stealing nine hogs on the 25th day of February, 1907, the property of one John Ferguson. Upon trial he was found guilty and sentenced to the penitentiary.

Ferguson resided in Iowa, but owned a ranch in Holt county, about twelve miles from the village of Atkinson. He employed a young man named Kimball to occupy the ranch and take care of the property. The evidence of the state, which was evidently believed by the jury, is about as follows: The defendant, Skidmore, had been employed by Ferguson upon the ranch in the same capacity as Kimball until December, 1906, the time that Kimball took charge. On the day the property was stolen Kimball went to Atkinson, attended a show there, and remained over night. On several occasions before the night of the offense Skidmore had talked with three young men named Weller, Purnell and McShane, suggesting the theft of the hogs from the Ferguson ranch. On the day before the night that the hogs were taken he told Weller that Kimball was in town at the show, and that he, Skidmore, would procure a wagon from one Kazada and a team with which they could get the hogs that night. He made arrangements with McShane for the use of his team, and between 8 and 10 o'clock that night McShane, Weller and Purnell, using McShane's team and Kazada's wagon, left Atkinson for the Ferguson ranch. They went to the ranch, loaded nine hogs, and brought them to Atkinson, reaching there just before daylight. Purnell went to Skidmore's house to notify him of their arrival. Skidmore then joined them and went with them to the stock-yards of one Dibble, a butcher and stock buyer, where Skidmore helped to unload the hogs. Dibble some time during that day paid Skidmore for the hogs, and Skidmore paid Weller and McShane $ 16 each as their share of the proceeds. The defense is that the hogs were procured through Skidmore's agency in the manner detailed for the benefit of Kimball, who received a part of the money for them, and that Skidmore was merely his innocent agent in the matter. Kimball had sold some hogs without authority before this. The jury evidently believed that the defendant planned the theft and took part in it, and there is sufficient evidence to uphold the verdict if the proper crime had been charged.

The court instructed the jury, in substance, that, if the defendant requested, instigated and procured the three men to steal the hogs, and that pursuant to such procurement they took the hogs, brought them to Atkinson, and that they were there sold by defendant with the felonious intent to steal the hogs and deprive the owner of his property, then the defendant would be guilty as charged. 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. Mr. Wharton says "The obstructions of justice caused by these subtleties have long been deplored." 1 Wharton, Criminal Law (10th ed.), 205. In this state aiding or abetting or procuring another to commit a felony is a substantive and independent crime. Criminal code, sec. 1; Oerter v. State, 57 Neb. 135, 77 N.W. 367; Casey v. State, 49 Neb. 403, 68 N.W. 643; Dixon v. State, 46 Neb. 298, 64 N.W. 961; Lamb v. State, 69 Neb. 212, 95 N.W. 1050. Since a person cannot lawfully be convicted of a crime other than that with which he is charged, it is clear that, if from the facts related Skidmore was an accessory before the fact, he could not lawfully be convicted of the larceny itself. Unless the defendant was actually or constructively present at the time of the commission of the offense, he could not be held as principal, but, if he aided, abetted or procured the commission of the crime, he could properly be convicted as an accessory. Since he was not actually present, the question arises: Was he constructively present? "A person is constructively present, and therefore guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise, or is so situated as to be able to aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise." Clark and Marshall, Law of...