State v. Smith

• Decision Date: 09 December 1896
• Citation: 69 N.W. 269,100 Iowa 1
• Parties: STATE OF IOWA, v. GEORGE S. SMITH, Appellant. [*]
• Court: Iowa Supreme Court

69 N.W. 269

100 Iowa 1

STATE OF IOWA, v. GEORGE S. SMITH, Appellant. ^[*]

Supreme Court of Iowa, Des Moines

December 9, 1896

Appeal from Johnson District Court.--HON. M. J. WADE, Judge.

THE defendant was accused of the crime of assault with the intent to commit murder, tried by jury, found guilty, and adjudged to be imprisoned in the state penitentiary at Anamosa, at hard labor, for the term of one year and eight months. From that judgment, he appeals.

Reversed.

Bailey & Murphy, Joe A. Edwards, and Hedges & Rumple for appellant.

Milton Remley, attorney general, for the state.

OPINION

ROBINSON, J.

On the thirteenth day of August, 1895, R. P. Jones, the sheriff of Johnson county, had for service an order, issued by a justice of the peace, for the removal of the defendant, "and store goods and office furniture," from a certain building in a village of Johnson county. He found the premises described in the order occupied by the defendant and his brother, John T. Smith, with a small stock of medicines and some groceries. When the sheriff made known his business the defendant, who is a physician, moved the medicines out of the building, but claimed that the groceries belonged to his brother. The latter was not named in the order, and claimed that the sheriff had no right to remove him or his property from the building. The sheriff insisted upon his right to do so, and, while attempting to enter the building after the defendant had left it, John T. Smith discharged at him a gun. The shot with which the gun was loaded missed the sheriff, but hit four children, who were on the opposite side of the street. It is claimed that defendant was accessory to the act.

I. The court gave to the jury an instruction as follows: "(5) It is the law of this state that 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, even though not present, are equally guilty with the principal, and are subject to the same punishment, and guilty of the same offense, as the person who actually does the act which constitutes such offense; and in this case, the defendant, if guilty at all, under the evidence, is guilty only as aiding or abetting the said John T. Smith in the commission of the crime charged in the indictment, or some of those included therein." Also: "(13) * * * The defendant, if guilty at all, is guilty of whatever offense was committed by the said John T. Smith, if any; and if he is not guilty of such offense, if any, as was under the evidence committed by John T. Smith, then he cannot be found guilty of any offense under this indictment, and he must be acquitted." These instructions, although in different paragraphs of the charge, are properly considered together. It is our opinion, that they announce an erroneous rule of law. Section 4314 of the Code is as follows: "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 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 guilt of a person who aids or abets the commission of a crime must be determined upon the facts which show the part he had in it, and does not depend upon the degree of another's guilt. See State v. Lee, 91 Iowa 499 (60 N.W. 119); People v. Kief, 126 N.Y. 661 (27 N.E. 556); Goins v. State (Ohio) (46 Ohio St. 457, 21 N.E. 476); State v. Steeves (Or.) (29 Ore. 85, 43 P. 947); State v. Bogue (Kan. Sup.) (52 Kan. 79, 34 P. 410); State v. Patterson, 52 Kan. 335, 34 P. 784; 1 Am. & Eng. Enc. Law (2d Ed.) 269; 1 Wharton, Cr. Law, section 237. In this case, the shot which endangered the sheriff was fired by John T. Smith. He may have fired it with such premeditation and malice, as to have committed the offense of an assault with intent to commit murder; yet the defendant may have abetted or counseled it in the heat of passion, without premeditation, and without malice, and thus have been guilty of the offense of assault with intent to commit manslaughter. State v. White, 45 Iowa 325. It is clear that, had these been the facts, the defendant would not have been guilty of the offense committed by his brother. It should be remembered that the instructions we have set out have no reference to an act committed as the result of a conspiracy. In such a case a different rule prevails, for the reason that a conspirator engaged in an unlawful act is liable for the acts of his co-conspirators, done in pursuance of the common design. State v. Munchrath, 78 Iowa 268 (43 N.W. 211). The evidence with regard to the connection of the defendant with the offense alleged to have been committed by his brother is conflicting, and we cannot say...