State v. Berube

• Citation: 158 Me. 433,185 A.2d 900
• Parties: STATE of Maine v. Lawrence E. BERUBE.
• Decision Date: 28 November 1962
• Court: Supreme Judicial Court of Maine (US)

Page 900

185 A.2d 900

158 Me. 433

STATE of Maine v. Lawrence E. BERUBE.

Supreme Judicial Court of Maine.

Nov. 28, 1962.

Gaston M. Dumais, County Attorney, Lewiston, for plaintiff.

Roscoe H. Fales, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

SIDDALL, Justice.

On Exceptions. Respondent was indicted for the crime of robbery. He entered a plea of not guilty and after trial a verdict of guilty was returned. At the conclusion of the evidence, respondent's counsel moved for a directed verdict, and the motion was denied by the court. After the charge, respondent's counsel asked for the following instruction: 'Berube had no obligation to interfere even if not in fear, and even if a compatriot [companion] of Esman.' The court refused to give the requested instruction.

The case comes here on exceptions to the refusal of the court to grant respondent's motion for a directed verdict and to give the requested instruction.

In the instant case the actual perpetrator of the assault and robbery was Esman. The crime took place in the presence of the respondent in an apartment of an acquaintance. He was friendly with Esman and was Esman's companion that same evening before and after the commission of the crime.

The person actually perpetrating a crime is ordinarily termed a principal in the first degree, and one present and aiding and abetting is termed a principal in the second degree. The law is well settled in this state that all persons who are either actually or constructively present, aiding, abetting, and assisting a person to commit a felony are principals and may be indicted as such. State v. Burbank, 156 Me. 269, 279, 163 A.2d 639; State v. Rainey, 149 Me. 92, 97, 99 A.2d 78; State v. Saba et al., 139 Me. 153, 156, 27 A.2d 813; State v. Flaherty, 128 Me. 141, 145, 146 A. 7.

However, something more than mere presence must be proved in order to convict as a principal a person who is not the actual perpetrator of the crime. It is sufficient if such person aided, abetted, assisted, advised or encouraged another in the commission of the crime, or was present for such purpose to the knowledge of the perpetrator. Likewise, any concerted participation in a general felonious plan, together with actual or constructive presence, is sufficient to make a person a prinoipal as to any crime committed in execution of the plan. Our court in the case of State v. Burbank, supra, had occasion to discuss some of the elements constituting aiding and abetting the commission of a crime. On page 279 of 156 Me., on page 644 of 163 A.2d of that case the court said:

'If she [the respondent] is guilty of manslaughter, it must be because the evidence is such that she is placed in the category of a principal to the commission of a felony as there is no proof of her physical engagement in the act which caused the injuries resulting in death.

"A principal of the second degree is one who is present lending his countenance, encouragement or other mental aid while another does the act.' Bishop's Criminal Law, Vol. 1, Sec. 648(3).

'In order for one to be a principal, it is necessary for him to be present, either actually or constructively.

'Constructive presence is sufficient to satisfy the element of 'presence' in a charge of aiding and abetting in constituting one a principal. English v. Matowitz, 148 Ohio St. 39, 72 N.E.2d 898.

"It is settled law that all who are present (either actually or constructively) at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose, to the knowledge of the actual perpetrator, are principals and are equally guilty.' State v. Holland, 234 N.C. 354, 67 S.E.2d 272-274.

"To constitute one an aider and abettor in the commission of a crime, he must be actually or constructively present at the time of its commission and render assistance or encouragement to the perpetrator.' Howard v. Commonwealth, 304 Ky. 149, 200 S.W.2d 148-150.'

The general rule is that there is no duty on the part of a bystander to prevent the commission of a crime. However, if he fails to do so, and particularly when he is a friend or companion of the actual perpetrator, such failure may be considered, with all other circumstances of the case, in determining whether he aided or abetted the commission of the crime. The conduct of the respondent before and after the commission of the crime, including companionship with the actual perpetrator, may likewise be considered by the jury as bearing on the respondent's guilt.

'While it is true that the mere presence of a person at the scene of a crime is insufficient to constitute him a principal therein, in the absence of anything in his conduct showing a design to encourage, incite, aid, abet or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he assented to the commission of the crime, lent his countenance and approval thereto and thereby aided and abetted it. * * *

'It has also been held that the presence of one at the commission of a felony and companionship with another engaged therein, and a course of conduct before and after the offense, are circumstances which may be considered in determining whether aiding and abetting may be inferred.' Mobley et al. v. State, 227 Ind. 335, 85 N.E.2d 489, 492, 493.

'We have repeatedly held that knowledge or intent is seldom capable of direct proof. It is usually inferred from the proven surrounding circumstances. State v. Van , Iowa , 2 N.W.2d 748, 749, and citations. Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed. 22 C.J.S., Criminal Law, p. 161, § 88b; State v. King, 198 Iowa 325, 337, 197 N.W. 981; State v. Brown, 130 Iowa 57, 62, 64, 106 N.W. 379. A common purpose among two or more persons to commit a crime need not be shown by positive evidence but may be inferred from the circumstances surrounding the act and from defendant's conduct subsequent thereto. 22 C.J.S., Criminal Law, p. 156, § 87a; State v. Carlson, 203 Iowa 90, 93, 212 N.W. 312.' State v. Kneedy, 232 Iowa 21, 3 N.W.2d 611.

'The applicable rule stated in 16 C.J. 133, as quoted and approved in State v. Kowertz, 317 Mo. 426, 297 S.W. 358, 361, is as follows: "The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting. And it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." See, also, State v. Moulder et al., Mo. Sup., 57 S.W.2d 1064.' State v. Corbin, Mo., 186 S.W.2d 469, 471.

See also People v. Mummert, 57 Cal.App.2d 849, 135 P.2d 665, 668; State v. Bishop, 317 Mo. 477, 296 S.W. 147; Callies v. State, 157 Neb. 640, 61 N.W.2d 370, 374-375; State v. Defalco, 8 N.J.Super. 295, 74 A.2d 338, 340: Wharton's Criminal Law, 12th Ed., Vol. 1, Sec. 246; 22 C.J.S. Criminal Law § 88(2)d.

Having in mind these principles of law we take up first the respondent's exception to the refusal of the court to instruct the jury that 'Berube had no obligation to...