State v. Whitman
| Decision Date | 10 January 1908 |
| Docket Number | 15,362 - (22) |
| Citation | 114 N.W. 363,103 Minn. 92 |
| Parties | STATE v. THOMAS WHITMAN and Others |
| Court | Minnesota Supreme Court |
Appeal by defendant Thomas Whitman from a judgment of the district court of Hennepin county convicting him of the crime of grand larceny in the second degree, and from an order, Dickinson J., denying his motion for a new trial. Affirmed.
Larceny -- Accessory before the Fact -- Variance.
The defendant was convicted of the crime of larceny. The indictment directly charged him with having stolen a quantity of sugar from a certain building, both being the property of and in the possession of the person named in the indictment. The proof was that he was not physically present when the sugar was stolen, but that he procured his accomplices, who were witnesses for the state, to steal it, and, further, that the person named as owner was in possession of the building and had possession of the sugar therein as bailee, but the general ownership of the property was in other parties. Held:
1. One who at common law would be an accessory before the fact may by virtue of R.L. 1905, § 4758, be charged directly with the commission of the felony as principal, and on his trial evidence may be received to show that he procured the crime to be committed, and, further, that the admission of such evidence is neither a variance nor a violation of section 6, art. 1, of the state constitution, providing that in criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him.
2. There was no material variance between the proof and allegations of the indictment as to the ownership of the sugar and building from which it was stolen.
3. There was sufficient corroboration of the accomplices to sustain the conviction of the defendant.
4. There were no reversible errors in the rulings of the trial court as to the admission of evidence, nor did it err in refusing to instruct the jury as to a matter which there was no evidence tending to prove.
Mead & Robertson, for appellant.
Edward T. Young, Attorney General, Chas. S. Jelley, Assistant Attorney General, and Al J. Smith, County Attorney, for the state.
The defendant was convicted in the district court of the county of Hennepin of the crime of grand larceny in the second degree. He appealed from the judgment and from an order denying his motion for a new trial. The indictment, which was upon its face sufficient in form and substance, charged the defendant, as a principal, with the crime of grand larceny in the second degree. The evidence showed that he was not physically present when the larceny was consummated, but it did show beyond any reasonable doubt that he procured his codefendants to commit the crime and aided and advised them in the commission thereof.
While the indictment is sufficient, and on its face it advised the defendant that he was charged with having committed the crime directly as principal, yet the proof was that he procured his codefendants to commit the crime. Therefore the defendant's counsel contends that he was not "informed of the nature and cause of the accusation" against him, as required by section 6 of article 1 of the constitution of the state.
At common law a distinction was made between an accessory before the fact and a principal. The accessory could not be charged as a principal. This distinction was technical, for what one does by another he does by himself. The common-law rule has been expressly abolished by our Penal Code (R.L. 1905, § 4758), which reads as follows: "Every person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and every person who directly or indirectly counsels, encourages, hires, commands, induces, or otherwise procures another to commit a crime, is a principal, and shall be indicted and punished as such." This statute has been construed by this court, and the rule is that one who at common law would be an accessory before the fact may be charged directly in the indictment with the commission of the offense, and on his trial evidence may be received to show that he procured the crime to be committed, or he may be charged as principal by setting out facts which at common law would constitute him such accessory. State v. Beebe, 17 Minn. 218 (241); State v. Briggs, 84 Minn. 357, 87 N.W. 779. This rule is in harmony with the decisions of nearly all of the courts of other states having a similar statute. 1 Am. & Eng. Enc. (2d Ed.) 263; 22 Cyc. 361.
It is, however, urged that in the adjudged cases supporting the rule no reference is made to the claim that an indictment charging one who at common law would be an accessory before the fact as a principal does not inform the accused of the nature and cause of the accusation against him. This is true as to many, but not all, of the cases. We cannot assume that the point escaped the attention of the court in the cases referred to. Conceding, however, for the purposes of the argument, that it did, we are of the opinion that, where the distinction between accessories before the fact and principals has been abolished, an indictment so framed does inform the accused of the nature and cause of the accusation against him, within the meaning of the constitution. Every person who procures property to be stolen, in fact and in law, by virtue of the statute, steals it himself, and when the indictment charges him with stealing the property, describing it, setting forth time and place, and alleging ownership and value, it informs him of the nature and cause of the accusation against him. It is not necessary to allege matters of evidence in an indictment, for it is only necessary to allege ultimate facts.
In the case of People v. Bliven, 112 N.Y. 79, 82, 19 N.E 638, 8 Am. St. 701, this question was ably discussed. In that case the defendant, as here, was charged by the indictment as a principal. The proof showed that he was not present when the crime was committed, but that he procured it to be committed. The question was raised that a conviction could not be sustained upon such an indictment and such proof. The court held the indictment and the evidence sufficient. The Bill of Rights in the constitution of the state of New York does not, as we understand the matter, contain a provision similar to the one in our Bill of Rights, to which reference has been made. The case cited, however, is here in point; for the question was whether the defendant could be misled as to the nature and...
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