State v. Rowe

• Decision Date: 18 January 1898
• Parties: STATE OF IOWA v. RICHARD ROWE, Appellant
• Court: Iowa Supreme Court

73 N.W. 833

104 Iowa 323

STATE OF IOWA v. RICHARD ROWE, Appellant

Supreme Court of Iowa, Des Moines

January 18, 1898

Appeal from Poweshiek District Court.--HON. D. RYAN, Judge.

INDICTMENT for embezzlement. Verdict of guilty, and a judgment of imprisonment, from which the defendant appealed.-- Affirmed.

AFFIRMED.

J. T Allensworth for appellant.

Milton Remley, attorney general, for the state.

OPINION

GRANGER, J.

I.

The indictment charges that Chester W. Rowe, as county treasurer of Poweshick county, Iowa embezzled thirty thousand dollars of money belonging to the county, and that the defendant aided and abetted him in so doing. The defendant was not a public officer, and bore no trust relation whatever as to the money charged to have been embezzled. To get directly to the point, it may be said that, had he taken the money without any reference to Chester W. Rowe, he could not have been indicted and convicted of embezzlement. If the charge of embezzlement can be sustained, it is solely on the ground that he aided or abetted Chester W. Rowe to commit such a crime. In view of this situation, the question is presented: Can one who, by himself, could not be a principal in the crime of embezzlement, be an accessory to the crime, in the sense of aiding and abetting its commission? The question leads to a consideration of our statutory provisions. Section 3908 of the Code of 1873 provides that public officers who shall convert to their own use money intrusted to their care and keeping shall be guilty of embezzlement. The following is section 4314: "The distinction between an accessory before the fact and a principal is abrogated and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, though not present, must hereafter be indicted tried and punished as principals." The question is urged: If Richard Rowe could not be principal in the crime of embezzlement if he took the money himself, how can he be if he merely advises the taking of it? The answer is not difficult. It is because the law makes him so. It is just as competent for the legislature to make one who aids another to commit embezzlement an embezzler as it is to make the principal actor one. It is merely a question of legislative intent. The difficulty of the argument is in bringing into it the thought of accessoryship, and that there is a charge of that character when there is no such purpose. The section quoted abrogates the relationship of accessory before the fact to crimes in this state, and fixes the crimes and punishment for one who aids and abets another in the commission of a public offense. If he aids and abets another to commit a crime, he is guilty of the same crime as the other, and subject to the same punishment. The effect of section 4314 is to enlarge the scope of section 3908, so that other persons than those therein specified may be guilty of embezzlement by doing the acts specified. Stress is placed upon the fact that section 4314 was enacted in 1843, and section 3908 not until 1851; so that, in the enactment of section 4314, reference must have been had to the rule of accessory before the fact; and, as the crime of embezzlement was not know to the common law, there could have been no intent to have it apply to embezzlement. A sufficient answer is this: Both provisions were embraced in the Code of 1851, in the Revision of 1860, and in the Code of 1873. In each instance the manner of adoption was such as to make all embraced therein part of one act, so there can be no doubt of their being provisions of the law that should be considered together. Hunt v. Insurance Co., 67 Iowa 742, 24 N.W. 745. In State v. Smith, 100 Iowa 1, 69 N.W. 269, in considering section 4314, we said: "The effect of this provision is to make the offense of one who at common law would have been an accessory before the fact substantive and so far independent that he may be indicted, tried, and punished, and as a principal, without regard to the prosecution of the person who at common law would have been the principal." The whole matter is concluded in this one proposition; that the statute, in effect, provides that one who aids and abets another to commit embezzlement is himself guilty of embezzlement, and shall be punished accordingly. The authority of the legislature to so provide is not doubted. But, independent of our statute, appellant's position is not sound. One may be an accessory by procuring a crime, although such procurer is incompetent to commit the offense in person. State v. Comstock, 46 Iowa 265; 1 Am. & Eng. Enc. Law. (2d ed.) 260, and cases there cited.

II. Preliminary information was filed before a justice of the peace in July, 1895, charging the offense of embezzlement in the manner we have stated, and such information was made the basis of proceedings by which defendant was extradited from the republic of Mexico. The point is made that in the information he was charged as an accessory before the fact, and was brought to Iowa and tried on an indictment charging him as principal. The mistake is in the facts. He was not charged as accessory in the information, but as counseling and advising the commission of the crime of embezzlement by ...