United States v. Peoni, 155.

Decision Date12 December 1938
Docket NumberNo. 155.,155.
CourtU.S. Court of Appeals — Second Circuit

Abraham Solomon, of New York City (Bernard Weiss, of New York City, of counsel), for appellant.

Michael F. Walsh, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and James D. Saver, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.

Before L. HAND, SWAN and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Peoni was indicted in the Eastern District of New York upon three counts for possessing counterfeit money, and upon one for conspiracy to possess it. The jury convicted him on all counts, and the only question we need consider is whether the evidence was enough to sustain the verdict. It was this. In the Borough of the Bronx Peoni sold counterfeit bills to one, Regno; and Regno sold the same bills to one, Dorsey, also in the Bronx. All three knew that the bills were counterfeit, and Dorsey was arrested while trying to pass them in the Borough of Brooklyn. The question is whether Peoni was guilty as an accessory to Dorsey's possession, and whether he was party to a conspiracy by which Dorsey should possess the bills.

The prosecution's argument is that, as Peoni put the bills in circulation and knew that Regno would be likely, not to pass them himself, but to sell them to another guilty possessor, the possession of the second buyer was a natural consequence of Peoni's original act, with which he might be charged. If this were a civil case, that would be true; an innocent buyer from Dorsey could sue Peoni and get judgment against him for his loss. But the rule of criminal liability is not the same; since Dorsey's possession was not de facto Peoni's, and since Dorsey was not Peoni's agent, Peoni can be liable only as an accessory to Dorsey's act of possession. The test of that must be found in the appropriate federal statute (§ 550 of Title 18, U.S.Code, 18 U.S.C.A. § 550). The first statute dealing with the matter was passed in 1790 (1 St. at L. 114) and made those accessories who should "aid and assist, procure, command, counsel or advise", murder or robbery on land or sea, or piracy at sca. Section 10. This was broadened in 1870 (16 St. at L. 254) to include any felony, and by it an accessory was anyone who "counsels, advises or procures" the crime, section 2: this phrase was probably regarded as an equivalent of the first. Both those statutes were repealed in 1909 by § 341 of the Criminal Code (35 St. at L. 1088, 1153), and supplanted by § 332 of that act, which like § 550 of Title 18 U.S. Code, 18 U.S.C.A. § 550, read as follows: "aids, abets, counsels, commands, induces, or procures". The substance of that formula goes back a long way. Pollock & Maitland, Vol. II, p. 507, in speaking of the English law at the beginning of the 14th Century, say that already "the law of homicide is quite wide enough to comprise * * * those who have `procured, counselled, commanded or abetted' the felony"; citing Bracton, f. 142, as follows: "for it is colloquially said that he sufficiently kills who advises" (praecipit) the killing. In 1557, by chapter 4 of 4 & 5 P. & M., benefit of clergy was taken away from those who should "command, hire and counsel" another to commit petit treason, murder, robbery or "willful" arson; and the indictment in Parker's Case, 1560, Dyer 186 a, read that the accused had "counselled, commanded, procured and abetted" the murder. Coke, Inst. II, p. 182, in commenting on the Stat. of West. 1, Chap. XIV, which dealt with accessories, declared that they were divided into three "branches"; "commandement, force et aide". "Commandement" was "praeceptum" which included those who "incite, set on or stir up" others to the deed. "Force" was to furnish a weapon; and "aide" ("auxilium") included "all persons counselling, abetting, plotting, assenting, consenting or encouraging to doe the act." In 1691, by Chapter 9 of 3 & 4 W. & M., benefit of clergy was denied those who "comfort, aid, abet, assist, counsel, hire or command" certain enumerated felonies. Hale, Pleas of the Crown p. 615, 1736, defined an accessory as one who "doth * * * procure, counsel, command or abet another". In The Case of Macdaniel & others, 1755, Foster, 125, the question was bruited whether one might be an accessory at one remove, and it was said, though obiter, that he might, for "whoever procured a felony to be committed though it be by the intervention of a third person is an accessory * * * For what is there in the notion of commanding, hiring, counselling, aiding or abetting which may not be effected by the intervention of a third person." Blackstone, 1768, Book IV, pp. 36 & 37, described an accessory as "he who in any wise commands or counsels another to...

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