State v. Kent

• Citation: 62 N.W. 631,4 N.D. 577
• Parties: STATE v. MYRON R. KENT
• Decision Date: 20 March 1895
• Court: North Dakota Supreme Court

62 N.W. 631

4 N.D. 577

STATE v. MYRON R. KENT

Supreme Court of North Dakota

March 20, 1895

Error to District Court, Morton County; Winchester, J.

Myron R. Kent, having been convicted of murder, brings error.

Reversed.

Judgment and order reversed, and a new trial ordered.

M. A Hildreth, J. E. Campbell and J. G. Perrault, for plaintiff in error.

The word "may" as used in the last clause of § 7312, Comp. Laws, is mandatory. State v. Henning, 54 N.W. 536; State v. Palmer, 57 N.W. 490; Goldsby v. State, 18 Ind. 147; Merhan v. State, 44 Ind 598; Manley v. State, 52 Ind. 215; Dinginnis v State, 66 Ind. 350; State v. Nerumn, 49 Conn. 233; Kane v. Forth, 70 Ill. 587; Com. v. Smith, 111 Mass. 407; Potters Dwarris on Stats. 220; Endlich on Int. of Stats. 416. Permitting F. M. Nye to appear as private prosecutor with the states attorney was illegal. 1 Bish. Cr. Pro. § 988; Miester v. People, 1 Am. Cr. Repts. 91; State v. Russell, 53 N.W. 441. The sheriff was a witness for the prosecution and the special venire issued to him should have been set aside on defendants motion. Peo. v. Coyodo, 40 Cal. 592; Peo. v. Welsh, 49 Cal. 174. Kent is charged with having killed deceased, the evidence showed that he only advised it. If there is a variance between the allegation and the proof, this is usually fatal. Green v. State, 1 Am. Cr. Repts. 645; Boyd v. Com., 4 Am. Cr. R. 145; Peo. v. Durman, 106 N.Y. 502; State v. Vorey, 43 N.W. 324; 1 Chitty Cr. L. 168, 171; State v. Fallon, 2 N.D. 510. It was necessary to charge Kent, with having advised, aided and abetted the commission of the homicide. Peo. v. Swartz, 32 Cal. 160; Peo. v. Trim, 39 Cal. 75; Peo. v. Campbell, 40 Cal. 129; Com. v. Mulligan, 8 Cr. L. Mag. 639; Peo. v. Thrall, 50 Cal. 415. Admission of improper evidence is reversible error, even though the other evidence in the case was sufficient to sustain a conviction. Queen v. Gibson, 7 Am. Cr. R. 171; Somerville v. State, 6 Tex.App. 433. Any statement of Swedensky, not a part of the criminal enterprise and made after the homicide was consummated was inadmissable. Peo. v. Stone, 13 Hun. 265; 3 Rice on Ev. 902. Before the acts and declarations of the confederate could be proved against Kent, it was necessary to prove prima facie that he Kent had conspired with this confederate to murder deceased. 1 Greenl. on Ev. 3; Peo. v. Bennett, 49 N.Y. 144. It was therefore error to permit Swedensky to testify as to the book and to translate it. Armsby v. Peo., 53 N.Y. 472; McKenzie v. State, 25 S.W. 426; Brown v. U.S. 150 U.S. 93; State v. Green, 18 S.E. 933; State v. Beaucleigh, 4 S.W. 666; Wylie v. State, 3 S.W. 570; State v. Melrose, 12 S.W. 250; Peo. v. Pavlik, 3 N.Y.S. 232; Peo. v. Sharp, 14 N.E. 319; Lewis v. Com., 11 S.W. 444. It was competent to show that no steps had been taken looking to the prosecution of Swedensky. Abbott's Cl. Bf. 384; Peo. v. Whipple, 9 Cow. 708; Peo. v. Langtree, 64 Cal. 256.

H. G. Voss and (John F. Cowan, Atty Gen'l,) for defendant in error.

The word "may" as used in § 7312, Comp. Laws, means permissible only. Territory v. Smith, (Mss.;) Gould v. Hahes, 19 Ala; 492; Turnpike Co. v. Miller, 5 Johns Ch. 113; Kane v. Fort, 70 Ill. 582. It was proper for counsel to assist the states attorney in the prosecution. Polin v. State, 16 N.W. 898; Bradshaw v. State, 22 N.W. 363; State v. Crafton, 56 N.W. 257; State v. Shreves, 47 N.W. 899; Com. v. Williams, 2 Cush. 582; Gardner v. State, 26 At. Rep. 30; 5 Am. & Eng. Enc. Law, 718. One who at common law would be an accessory before the fact, must now be indicted, tried and punished as a principal, and no additional facts need be alleged in any indictment against such accessory than are required in an indictment against his principal. Peo. v. Blevin, 112 N.Y. 79; Campbell v. Com., 84 Pa. 187; State v. Hessin, 12 N.W. 77; State v. Phelps, 59 N.W. 471; Peo. v. Rozelle, 20 P. 36; State v. Duncan, 35 P. 117; Peo. v. Anteveras, 48 Cal. 19.

OPINION

CORLISS, J.

The plaintiff in error was convicted of the crime of murder. The jury, under the statute, decided that he should suffer death. Comp. Laws, § 6449. Having been sentenced to be hung, he obtained a writ of error, and the whole case is now before us for review.

The first point we will consider relates to the information. In it the accused is charged as principal. The information alleges that he himself held and discharged the gun by which the victim was killed. It contains no averment that he counseled and directed any third person to commit the crime. The undisputed fact is that the murdered person, who was Kent's own wife, was shot and killed by another, and that Kent's connection with the homicide, if any, was as the instigator of the accomplice. At the time the fatal shot was fired, Kent was many miles away. At common law, Kent would have been an accessory before the fact. He could not legally have been indicted as principal. Under such an indictment he could not, at common law, be convicted. This rule, however, was purely technical, and was limited in its scope to felonies. In cases of misdemeanors all the guilty persons were, at common law, principals,--as well those who counseled and directed the crime as those who personally committed the offense. 1 Bish. Cr. Law, § § 681, 685, 686. There was a single exception to this rule in cases of felonies, in that there were no accessories in cases of high treason. An accessory after the fact could not be convicted in advance of the conviction of the principal, and he could not be indicted as a principal. The specific facts showing his subsequent connection with the traitorous project must have been set forth in the indictment. Id. § 701. In misdemeanors and high treason the pleader was always at liberty to charge the accessory as principal in the indictment. It was, however, entirely proper to set forth that the accused had counseled or directed the commission of the crime by another, but this was not necessary. As the law regarded all who were implicated as principals, they might all be proceeded against as principals. Id. § § 681, 685. This distinction between misdemeanors and treason, on the one hand, and felonies, on the other, with respect to the allegations of the indictment and the necessity of first trying the actual principal, never had any substantial foundation in principle. Id. § 673. There is, therefore, no reason why we should hesitate in giving to our statute, to which we will now refer, a construction which will place felonies in the same category with misdemeanors and treason, as far as these questions are concerned. The statute provides that "the distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, and no additional facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal." Comp. Laws, § 7260. The language of this statute is too explicit to leave room for doubt as to the intent of the law-making power. The purpose it was framed and passed to accomplish was the abrogation of this purely arbitrary distinction between felonies and other offenses, and the placing of all criminal as well as civil pleading under the same general rule, which, regarding the act of the agent as the act of the principal himself, permits the averment to be made against him that he himself did what in fact was done by his agent for him. See 1 Bish. Cr. Law, § 673. The authorities are numerous which hold that under the same or similar statutes the one who would at common law be a mere accessory before the fact may be indicted as principal, as though he himself fired the shot, or administered the poison, or struck the fatal blow. Some of the statutes which have been so construed are by no means so explicit in their language as section 7260. Hronek v. People, 134 Ill. 139, 24 N.E. 861; People v. Bliven, 112 N.Y. 79, 19 N.E. 638; Baxter v. People, 8 Ill. 368, 3 Gilm. 368; Dempsey v. People, 47 Ill. 323; Spies v. People, 122 Ill. 1, 12 N.E. 865 at 865-915; People v. Outeveras, 48 Cal. 19; State v. Hessian, 58 Iowa 68, 12 N.W. 77; State v. Duncan, 7 Wash. 336, 35 P. 117; People v. Rozelle, 78 Cal. 84, 20 P. 36; Griffith v. State, 90 Ala. 583, 8 So. 812. See, also, State v. Phelps, 5 S.D. 480, 59 N.W. 471.

This section, it is urged, is unconstitutional. We discover no provision of our constitution which it violates. Our organic law does not require that the accused shall be informed of the nature and cause of the accusation. The federal constitution does. Article 6 of the amendment to the constitution. But this provision of the constitution of the United States does not relate to proceedings in the state courts. Cooley, Const. Lim. (5th Ed.) p. 26. We are referred to § § 7241, 7242, Comp. Laws, as being repugnant to 7260. If they were repugnant they would, to that extent have to yield to the latter section. But we are unable to find in these two sections anything which forbids the indicting of an accessory as if he were principal. Under them it would be proper to charge an accessory before the fact, in the case of a misdemeanor, as though he were principal, had section 7260 never been enacted. This latter section merely places felonies in the same class. Section 7241 declares that the indictment must contain "a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended." What are ...