State v. Woodworth

• Decision Date: 31 August 1938
• Docket Number: No. 3.,3.
• Citation: 121 N.J.L. 78,1 A.2d 254
• Parties: STATE v. WOODWORTH et al.
• Court: New Jersey Supreme Court

1 A.2d 254

121 N.J.L. 78

STATE

v. WOODWORTH et al.

No. 3.

Supreme Court of New Jersey.

Aug. 31, 1938.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

Error to Court of Quarter Sessions, Hudson County.

Edward Woodworth, Donald N. Brown, and Anthony Panchelly were convicted of robbery, and they bring error.

Affirmed.

Argued May term, 1938, before BROGAN, C. J., and BODINE and HEHER, JJ.

Solomon Golat, of Newark (Herman Marx, of Newark, of counsel), for plaintiffs in error.

Daniel O'Regan, Prosecutor of the Pleas, of Jersey City, and Frank G. Schlosser, Asst. Prosecutor, of Hoboken, for the State.

HEHER, Justice.

Plaintiffs-inerror sued out this writ of error to review the judgment given upon their conviction of robbery; and the entire record of the proceedings had upon the trial has been returned with the bill of exceptions, under section 136 of the act relating to procedure in criminal cases (2 Comp.St.1910, p. 1863; Rev.Stat. 1937, 2:195-16), although the State maintains that, for failure of the statutory authentication, the trial proceedings are not before us.

First. It is urged in limine that the writ should be dismissed for the reason that plaintiffs-inerror have ignored the statutory mandate to "cause a transcript of the record to be made and returned with the writ of error" (2 Comp.Stat. 1910, p. 2209, section 7; Rev.Stat.1937, 2:195-8), in that "no final judgment is disclosed in such return, since the minutes of the Quarter Sessions Court do not comprise the record to be returned by the County Clerk, as Clerk of the Court of Quarter Sessions;" and that, in any event, notwithstanding the certificate of the trial judge that the return made in obedience to the command of the writ "contains the entire record of the proceedings had upon" the "trial", plaintiffs-inerror should not have the benefit of the more extensive review provided by section 136 of the criminal procedure act, supra, but should be confined to the bill of exceptions.

The last point is clearly untenable. It is predicated upon the erroneous view that where, as here, "the trial court certifies that the plaintiffs-inerror are bringing up the entire record of the proceedings had upon the trial, there must be in addition a formal authentication of the proceedings themselves." In other words, the record of the trial proceedings must be specially attested by the trial judge "at the end of the stenographic transcript." But here the trial judge's certificate plainly testifies that the return made to the writ embraces a transcript of the trial proceedings conceded to be authentic.

As to the first point, the return incorporates the sentences imposed; and, while couched in informal language in this regard, it of necessity is presumed to disclose the judgment actually entered, since the trial judge has certified that the return so made exhibits the "record and proceedings * * *, with all things touching and concerning the same, as before the Court of Quarter Sessions of the County of Hudson, they remain, or are in the custody or control of the Clerk of said Court." And, in view of the admitted confinement of plaintiffs-inerror in the State prison in execution of the sentences thus imposed, we deem it politic, if not indeed imperative, notwithstanding any formal deficiency, to review the proceedings so embodied in the return.

Thus we are brought to a consideration of the errors assigned on the bill of exceptions and the causes for reversal specified under the statute adverted to. The former are embraced within the latter, and do not require separate treatment.

Second. The indictment charged the perpetration of the robbery by plaintiffs-inerror as principals; and the initial point assigned for reversal challenges the instructions that, if Woodworth and Brown aided and abetted Panchelly in the perpetration of the robbery charged, "all would be guilty of robbery as principals," and that "in a robbery all who are present aiding and abetting in the commission of the robbery are guilty as principals."

Section 120 of the Crimes Act of 1898 (2 Comp.St.1910, p. 1785; Rev.Stat.1937, 2:166-1), provides that "Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, and his aiders, procurers and abettors, shall be guilty of a high misdemeanor;" and the argument is made that, by this provision, aiding and abetting is made "a separate substantive crime," and must therefore be charged in terms, and that a principal in the second degree may not be lawfully convicted of the "principal offence" under an indictment charging him only as a principal in the first degree.

In a case such as this, it is requisite only that the indictment accuse the defendant according to the legal effect of the offense. Under the common law, all who are present, aiding and abetting in a felony, are treated as principals, while in the case of misdemeanors all who aid, abet or participate are considered as principals of equal guilt. The distinction between principal and accessory is maintained only as to felonies. State v. Wyckoff, 31 N.J.L. 65; Engeman v. State, 54 N.J.L. 247, 23 A. 676; Roesel v. State, 62 N.J.L. 216, 222, 41 A. 408; State v. Warady, 78 N.J.L. 687, 75 A. 977; State v. Wilson, 79 N.J.L. 241, 75 A. 776, affirmed 80 N.J.L. 467, 78 A. 144; State v. Spcnce, 81 N.J.L. 265, 79 A. 1029; State v. Hanrahan, 87 N.J.L. 1, 93 A. 95, affirmed 88 N.J.L. 391, 96 A. 1103; State v. Carlino, 98 N.J.L. 48, 118 A. 784, affirmed 99 N.J.L. 292, 122 A. 830; State v. DeBellis, 136 A. 603, 5 N.J.Misc. 375, affirmed 104 N.J.L. 187, 138 A. 923; State v. Churchill, 105 N.J.L. 123, 143 A. 330; State v. Dolbow, 117 N.J.L. 560, 189 A. 915, 109 A.L.R. 1488; 2 Hawk.P.C. chap. 29, sec. 1; 4 Blackstone's Com. 34; Reg. v. Greenwood, 1850, 9 Eng. L. & Eq.Rep. 535, 2 Den.C.C. 453, 5 Cox, C.C. 521; Reg. v. Williams, 1841, Car. & M. 259; Rex v. Dyson, 1820, Russ. & R.C.C. 523. This rule applies to misdemeanors created by statute. State v. Wilson, supra.

But the insistence is that, "where a statute makes aiding and abetting a separate substantive offense, in addition to creating the principal offence, the common law rule is qualified," and, in that situation, "the law requires an indictment for aiding and abetting and a conviction as such"—citing State v. Wilson, supra.

The difficulty with this contention is that the Legislature has not, by the cited provision of the Crimes Act, created two separate and distinct misdemeanors. Aiding, procuring and abetting in a robbery is not thereby made a distinct substantive offense, punishable as such. It is to be noted, in passing, that the Crimes Act gives no recognition to the common law distinction between felonies and misdemeanors. It classifies all offenses as misdemeanors; the more serious, entailing the greater punishment, are termed high misdemeanors. Engeman v. State, supra; Brown v. State, 62 N.J.L. 666, 695, 42 A. 811; Jackson v. State, 49 N.J.L. 252, 255, 9 A. 740; State v. Wilson, supra; State v. Spence, supra. But, regardless of whether this classification of statutory crime as misdemeanors serves to abrogate all the incidents of the common law felonies embraced therein, the result is the same. It is an elementary principle of the common law that a newly-created statutory felony possesses all the incidents appertaining to felony by the rules and principles of the common law; and so all the procurers and abettors of the offense are principals or accessories, depending upon whether they were present, aiding and abetting in the felony, even though the statute is silent as to aiders and abettors. Coal Heavers' Case, 1 Leach C.C. 64, Fost. 428.

Yet it is pointed out that the English statute reviewed in the case last cited was silent as to aiders and abettors; and the insistence is that this constitutes a distinction of substance. We do not entertain that view.

There is no significance in the special mention of aiders and abettors. Their express inclusion within the statutory classification does not, in and of itself, constitute such assistance a "substantive offense", requiring specific accusation as a principal in the second degree or as an accessory. It would seem to be axiomatic that the expression of that which, omitted, would be regarded as an incident of the principal offense does not, standing alone, serve to impart to it a substantially different procedural status. In this regard, as in the statement of the elements of the principal offense, the act under consideration is merely declaratory of the common law. There is an utter lack of indicia of a broader purpose, especially when the language is viewed in the light of fundamental principles. Both the category and the punishment are the same.

Where the punishment is the same for both degrees, the common law observes no distinction of essence between principals in the first and second degree. The accused may be charged either, as he was in law, a principal in the first degree, or, as he was in fact, a principal in the second degree. Reg. v. Crisham, 1841, Car. & M. 187; Reg. v. O'Brian, 1844, 1 Den.C.C. 9, 2 Car. & K. 115, 1 Cox, C.C. 126; Reg. v. Rogers, 1836, 2 Moody, C. C. 85, 2 Lewin, C.C. 119, 297. But the rule is otherwise where, by statute, the punitive consequences are different. The principal in the second degree must in that case be indicted as such, i. e, as an aider and abettor. 1 East, P.C. 348, 350; Rex v. Sterne, 1 Leach, C.L. 473; Mackalley's Case, 9 Coke 67b; Fost.C.L. 345.

A design to depart from the "time-honored principles of the common law," to borrow the language of Mr. Justice Swayze in State v. Carlino, supra (118 A. page 786), is not to be lightly imputed to the Legislature. This classification of such aiders and abettors as principals is basic in our jurisprudence; and its substantial modification should not be made to rest upon bare inference. It...