State v. Steeves

• Decision Date: 02 March 1896
• Parties: STATE v. STEEVES.
• Court: Oregon Supreme Court

43 P. 947

29 Or. 85

STATE v. STEEVES.

Supreme Court of Oregon

March 2, 1896

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

X.N Steeves was convicted of manslaughter, and appeals. Reversed.

Rufus Mallory, for appellant.

C.M Idleman, Atty. Gen., and W.T. Hume, Dist. Atty., for the State.

MOORE J.

The defendant was jointly indicted with one Joseph Kelly for the crime of murder in the first degree, alleged to have been committed in the killing of one George W. Sayres. They had separate trials. Kelly, having been first tried, was convicted of murder in the second degree ( State v Kelly, 42 P. 217), and the defendant of manslaughter, and, being sentenced to imprisonment in the penitentiary for the term of 15 years, and to pay a fine of $1,000, appeals, assigning numerous errors, a few of which we will consider.

1. It is contended that the indictment does not charge murder in any degree. This cannot avail the defendant. He, having been convicted of manslaughter only, can have no valid reason to question the sufficiency of the indictment for a failure to allege murder in either degree. The principle for which he contends implies that the facts constituting the crime of manslaughter are properly stated, and, having been convicted thereof, it is manifest that the indictment is sufficient to support the judgment.

2. The defendant's counsel, after the state had introduced its evidence and rested, moved the court to direct the jury to return a verdict of acquittal on the ground, inter alia, that the indictment did not charge the defendant with the commission of the alleged crime for which he had been tried. The motion having been overruled, and an exception allowed it is insisted that the court erred in its refusal to so direct. It was not claimed at the trial that the defendant was present at the killing of Sayres, but it was insisted by the state, and the evidence introduced by it was in support of the theory, that Steeves counseled and procured Kelly to kill the deceased. The indictment charged the defendant with the commission of the overt act, and it is claimed that, instead thereof, he should have been charged as an accessory before the fact, and that to charge him as a principal violated the provison of the constitution which guaranties to the accused the right to demand the nature and cause of the accusation against him. Const. art. 1, § 11. The statute having prescribed that the indictment must contain a statement of the acts constituting the offense in ordinary and concise language without repetition, in such a manner as to enable a person of common understanding to know what is intended (Hill's Ann.Laws Or. § 1237), it is also claimed that the defendant could not know, from an inspection of the charge, that an attempt would be made to prove that he was an accessory before the fact, and that his right to be so informed was guarantied by the organic law of the state. At the common law all persons who participated in any manner in the commission of high treason or misdemeanor were treated as principals, but accessories before and after the fact were recognized in the commission of felonies. 4 Bl.Comm. 35. Principals and accessories were punished alike by the general rule of the ancient law, but Blackstone says the difference between these classes of offenders was observed "that the accused may know how to defend himself when indicted." Id. 39. The accessory could not be arraigned until after the attainder of the principal, unless he chose it, for he might waive the benefit of the law, and be tried with the principal. Id. 323. Those who would be accessories after the fact in felony would in treason be regarded as principals, but they were nevertheless treated in every particular as accessories. The charge in the indictment against them had to specify the accessorial nature of the offense, and they could not be convicted in advance of the principal. 1 Bish.Cr.Law, § 701. And those who in felony would be treated as accessories before the fact would in treason be also regarded as principals, but they might be directly charged with having done the overt act, or with having performed it through the agency of another. Id. § 682. "The legal distinction between the accessory before the fact and the principal," says Mr. Bishop, "rests solely on authority; for it is without foundation, either in reason or the ordinary doctrines of the law. The general rule in our jurisprudence, civil and criminal, is that what one does through another's agency he does, in point of law, himself." Id. § 673. Our statute has amended the rules of the common law upon this subject, and now treats all persons concerned in the commission of a crime as principals (section 2011, Hill's Ann.Laws Or.), and also 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 crime, or aid and abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of a misdemeanor." Id. § 1289. The defendant's contention proceeds upon the theory that the section just quoted violates the provision of the constitution which guaranties to the accused the right to demand the nature and cause of the accusation against him. In support of the principle contended for, our attention has been called to the case of People v. Campbell, 40 Cal. 129, in which Crockett, J., says: "The accessory is to be indicted, tried, and punished as a principal. Nevertheless, the particular acts which establish that he aided and abetted the crime, and thus became in law a principal, must be stated in the indictment. When these facts are averred and proved, the law considers the accused to be a principal, and condemns him accordingly." But in People v. Outeveras, 48 Cal. 19, the court, reviewing the principle announced in the preceding case, held that, the statute having abrogated the distinction between a principal and an accessory, each might be indicted, tried, convicted, and punished as a principal; thus reversing one of the cases upon the authority of which the defendant relies. This doctrine was reaffirmed in People v. Rozelle, 78 Cal. 84, 20 P. 36, but in these cases the defendants were present, aiding and abetting in the commission of the respective crimes with which they were charged, and at common law would have been denominated principals of the second degree. 1 Bish.Cr.Law,§ 648. So, too, in State v. Moran, 15 Or. 262, 14 P. 419, it was held that under the statute abrogating the distinction between principals and accessories any person concerned in the commission of the crime is a principal, and he is to be charged as such whether he directly committed the act or not, and all evidence tending to prove his complicity is admissible under that form of the indictment. In that case it was admitted that Moran was an accomplice in the administering of morphine which caused the death of one Frederick Kaluscha. To the person who is present, aiding and abetting another in the commission of a crime, being a principal, the abrogation of the distinction between principals and accessories can have no application. State v. Fitzhugh, 2 Or. 227; State v. Kirk, 10 Or. 505. It has been held that a statute prescribing the form of the indictment which does not inform the accused of the nature and cause of the accusation against him was violative of the organic law of a state which guarantied such a right. McLaughlin v. State, 45 Ind. 338; People v. Olmstead, 30 Mich. 432. In State v. O'Flaherty, 7 Nev. 153, it was held that the power of the legislature to mold and fashion the form of an indictment is plenary, but a statement in some form, of essential and material facts, cannot be dispensed with; and to the same effect is Brown v. People, 29 Mich. 232. In State v. Duncan, 35 P. 117, the supreme court of Washington, under a constitution containing a clause identical with ours (section 22, art. 1, Const.Wash.), held that an accessory before the fact may be charged in the information with the commission of the crime as a principal; but no reference is made by the court to that section of the constitution. As we have seen there exists no valid reason for the distinction between an accessory before the fact and a principal. How, then, can it be said that the statute abrogating the distinction between these classes of offenders violates the organic law of the state? When, the accessory before the fact is charged with the commission of the overt act, he is thereby substantially informed of "the nature and cause of the accusation against him." The person who counsels or procures another to commit a crime is by the statute properly deemed and considered as a principal, for in civil proceedings the maxim "Qui facit per alium facit per se" is applied to the relations of principal and agent; and, since the rule of the common law has been changed requiring the state to establish the guilt of the accused beyond a reasonable doubt, instead of requiring him to prove his innocence, there is no just reason why the same maxim should not now be invoked in criminal procedure; and, the overt act having been performed by him through his agent, the constitution, in our judgment, is not violated when the accessory before the fact is charged directly with having committed the crime. It is the intent of him that counsels or procures another to violate the law, coupled with the intent and act of the person who in pursuance thereof executes the original design, that constitutes the commission of the crime by the accessory before the...