State v. Rodosta

• Decision Date: 03 November 1931
• Docket Number: 31273
• Citation: 138 So. 124,173 La. 623
• Court: Louisiana Supreme Court
• Parties: STATE v. RODOSTA

138 So. 124

173 La. 623

STATE v. RODOSTA

No. 31273

Supreme Court of Louisiana

November 3, 1931

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Peter Rodosta was convicted of murder, and he appeals.

Reversed and remanded.

Charles A. Holcombe, of Baton Rouge (Pike Hall, of Shreveport, of counsel), for appellant.

Percy Saint, Atty. Gen., John Fred Odom, Dist. Atty., of Baton Rouge, E. R. Schowalter, Asst. Atty. Gen., and Fred S. Le Blanc, Asst. Dist. Atty., of Baton Rouge, for the State.

ODOM J. ROGERS, J., concurs in the decree, assigning reasons. O'NEILL, C. J., concurs, assigning reasons.

OPINION

ODOM, J.

The defendant and his wife, Mrs. May Rome Rodosta, were charged with the crime of murdering their child, May, an infant seven days old. The indictment against them charged that they "did feloniously, wilfully, and of their malice aforethought kill and murder one May Rodosta."

Mrs Rodosta, on her own motion, was granted a severance, and has not been tried. Peter Rodosta was tried, convicted, as charged and sentenced to death. From the verdict and sentence he appealed.

We find in the record ten bills of exception, nine of which were taken during the progress of the trial, and one to the ruling of the court refusing to grant a new trial. Bills 1, 2, 3, 4 and 5 all pertain to the charge delivered to the jury by the trial judge or to his refusal to give special charges requested by counsel for defendant. As they all relate practically to the same subject-matter, we shall discuss them as one.

1-5. It is pertinent to state here that the defendant concedes that his infant child was murdered. But it is contended that he did not perpetrate the deed; that the child was killed by his wife, its mother, during his absence; that he was not present, actually or constructively, when the child was killed, and therefore, if it should be found that in fact he did have some connection with the crime, he could not be convicted under the indictment which charged that he was a principal; that at most he was only an accessory to the crime, and as such could not be convicted as a principal, and he urged that defense before the trial court.

We have read the testimony attached to the various bills of exception. It is unnecessary to go into detail as to what it shows, as it is not within the province of this court to pass upon the guilt or innocence of the accused.

It is sufficient only to state that there was testimony before the jury which tended to support defendant's plea, that is, that he was not present, actually or constructively, when the child was killed.

The trial judge in his per curiam to bill No. 5 correctly summarizes the testimony pertinent to the issue here involved as follows: He said:

"The proof introduced by the state tended to show that Peter Rodosta either killed the child by his own hands, or caused or procured its killing, during his absence, at the hands of his wife."

The defendant having set up the plea that he was not present, either actually or constructively, when the child was killed, and there having been introduced some testimony tending to establish that plea, counsel requested the trial judge to deliver the following special charges:

"A person may participate in the commission of a homicide either as a principal or as an accessory. A principal in a homicide is one who was present, either actually or constructively, at the place of the crime, participating or aiding in the commission thereof. An accessory is one who was not the chief actor in the commission of the crime, but in some way connected with it either before or after the commission of the act. Therefore, if a person does nothing more than procure, advise or assist, not being present, actually or constructively he is only an accessory. The distinction between a principal and an accessory is that a principal is one who actually does the criminal act or actually participates in doing it, whether actually or constructively present, or who is actually present at the time of doing it, aiding and abetting; while an accessory is one who has such connection with the crime by reason of preparation, procurement, encouragement, or assistance as to be deemed criminally liable, though he does not participate in the actual commission of the crime and is not present thereat."

The court refused to give this special charge, but instead instructed the jury as follows:

"All persons are principals who are guilty of acting together in the commission of the crime charged in the indictment in this case. And all persons concerned in the commission of such crime, whether they directly commit the act constituting the offense, or aid, abet, advise, assist, counsel or command its commission, though not present, actually or constructively, may be charged, tried and convicted as principals."

"In the crime of murder, every person concerned therein, whether present actually or constructively at the commission of the crime, or absent, is a principal, and may be charged, tried and convicted as such, provided it is shown that such absent person aided, abetted, counseled or commanded its commission."

It is not true as a matter of law that in the crime of murder "everyperson concerned therein, whether present actually or constructively at the commission of the crime, or absent, is a principal."

Under section 976 of the Revised Statutes of this state, "all crimes, offenses and misdemeanors shall be taken intended and construed, according to and in conformity with the common law of England."

Under the common law, those who participate in the commission of a felony are divided into two general classes, principals and accessories. The principal, as that term is generally used, is he who is the actor or actual and immediate perpetrator of the crime. An accessory is one who participates in a felony too remotely to be deemed a principal. An accessory before the fact is a person "Whose will contributes to a felony committed by another as a principal, where he is too far away to aid in the felonious act." Bishop's Criminal Law (9th Ed.) § 673.

One "concerned in a felony" may be a principal under the common law and under our own jurisprudence, even though not the chief actor or the actual and immediate perpetrator of the crime. One person may be the chief actor or perpetrator of the deed, and therefore a principal. Another, though not the chief or principal actor, may so aid and abet the commission of the crime as to become a principal. But, where more than one person participates or takes part in a felony, "no one will be a principal as abetting him (the chief actor) unless in a position to render, if necessary, some personal assistance. Assuming one's will to contribute to the act, the test to determine whether he is a principal rather than an accessory is, whether he is so near or otherwise so situated as to make his personal help, if required, to any degree available. He need not be in the actual presence of the other principal; but if he is constructively there, as thus explained it is enough." Bishop's Criminal Law (9th Ed.) § 663.

In the case of State v. Poynier, 36 La.Ann. 572, the court used almost the identical language as that found in Bishop. The court said:

"Where there is a principal -- and there can be no crime without one -- no other person will be considered a principal with him unless in a position to render personal assistance of some kind. The test to determine whether he is principal rather than accessory is, whether he is so situated as to make his personal help available -- not actual physical help necessarily, but help of any kind -- not help rendered in or by actual presence, but constructive presence as well."

The organ of the court then proceeds to illustrate the manner in which one, though not the chief actor, may become a principal. He says:

"Thus, if he watched near or at a distance to prevent his companions being surprised, or stationed himself to give the alarm to favor their escape, or was in such situation as to come to their assistance so that the knowledge of this watching or position or situation inspired or was calculated to inspire his companions with additional confidence, and enable them quicker or safer or more effectually to commit their crime, then he is a principal." 1 Bishop's Criminal Law, § 673. 1 Wharton's American Criminal Law, § 116.

In State v. Walters, 135 La. 1070, 1103, 66 So. 364, 376, the court said:

"All persons aiding, advising, or abetting the commission of a crime are not principals; for the aiders, advisers, and abetters who are not present, actually or constructively, are accessories."

This statement of the law was quoted with approval in the cases of State v. Mullen, 160 La. 925, 107 So. 698; State v. Robichaux et al., 165 La. 497, 115 So. 728; and State v. La Rocca et al., 168 La. 204, 121 So. 744.

See "Principals and Accessories," Marr's Criminal Jurisprudence (2d Ed.) vol. 1, p. 71.

According to all law writers, and as settled by our own jurisprudence and that of other states, one who is not the actual perpetrator of a felonious act, but who aids, abets, counsels, or procures its commission, is not a principal, unless actually or constructively present at the commission of the crime.

Constructive presence means being so situated when the crime is committed as to be able to assist in its commission; that is, to be able to render some assistance, whether by watching to prevent his companions from being surprised, or stationed so as to give an alarm in order to aid in their escape, or stationed as to come to their assistance if necessary; that is, so stationed or situated as to be helpful to the end in view.

The...