Williams v. State

• Decision Date: 24 April 1922
• Docket Number: 325
• Citation: Williams v. State, 239 S.W. 1065, 153 Ark. 289 (Ark. 1922)
• Parties: WILLIAMS v. STATE
• Court: Arkansas Supreme Court

239 S.W. 1065

153 Ark. 289

WILLIAMS v. STATE

No. 325

Supreme Court of Arkansas

April 24, 1922

Appeal from Sharp Circuit Court, Northern District; J. B. Baker Judge; affirmed.

Judgment affirmed.

David L. King, for appellant.

J S.Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

OPINION

SMITH J.

Appellant was tried and convicted under an indictment containing two counts.The first count alleged that he robbed one A. E. McConnell.The second count alleged that one Sam Harmon had robbed McConnell, and that appellant"unlawfully and feloniously did stand by, aid, abet and assist the said Sam Harmon to do and commit said robbery in manner and form aforesaid."

Appellant appeared without counsel and asked permission to conduct his own defense.This right was accorded him after the court had offered to appoint counsel to defend him if he desired counsel to be appointed.

The jury returned the following verdict: "We, the jury, find the defendant, John Williams, guilty of the crime of being an accessory to the crime of robbery as charged in the indictment, and fix his punishment at imprisonment in the State Penitentiary for a period of three years.(Signed)J. W. Phillips, foreman."Thereafter appellant employed counsel to represent him, and the attorney so employed filed a motion for a new trial, assigning numerous errors for the reversal of the judgment.

Most of the errors assigned relate to incidents connected with the trial in the admission and exclusion of testimony and in giving and refusing to give instructions; but, as no objections were made or exceptions saved, these questions are not presented for review.Morris v. State,142 Ark. 297, 219 S.W. 10.

The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him.Article 2, § 10,Const. 1874.He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law.Appellant should therefore have made objection to such rulings of the court below as he cared to have reviewed by this court, and, as he made no objection to anything that occurred at his trial, there is presented for our review only such questions as can be raised without objection first being made in the court below.

A motion in arrest of judgment was properly overruled, as it is provided by statute that "the only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect."Section 3224, C. & M. Dig.The facts set out in the indictment do constitute a public offense.

No question is made about the sufficiency of the first count of the indictment charging appellant with the crime of robbery.The insistence is that the indictment upon which appellant was tried charged him with being guilty of the crime of robbery, whereas the jury returned a verdict against appellant of being an accessory to the crime of robbery--a crime not alleged or charged in the indictment.

We think appellant was charged with only one crime, and that was the crime of robbery.This crime was charged in two ways; first, that appellant did, himself, rob McConnell; second, that Sam Harmon robbed McConnell, and that appellant"did stand by, aid, abet and assist the said Sam Harmon to do and commit said robbery."But, as we have said, the two counts charged but a single offense.

This question was gone into thoroughly in the case of Hunter v. State,104 Ark. 245, 149 S.W. 99, and what was there said is decisive of the question here raised.The indictment in that case charged that Hunter had killed and murdered one Patterson by stabbing him with a knife, whereas no attempt was made to show that Hunter had struck the fatal blow as charged, but only that he was present aiding and abetting in the commission of the offense, which was done by one Monasco.

It was there pointed out that our statutes have abolished the distinction existing at common law between principals in the first and second degrees, and that where this has been done, "an indictment of a principal in the second degree need not aver any facts other than those requisite to an indictment of the principal in the first degree.22 Enc.Law &Pro. 360.See also10 Enc. Pl. & Pr.p. 156."

It was there further said: "One present aiding and abetting the commission of a felony, formerly a principal in the second degree, is, under the statute, responsible for the result of the act done as though he had done it himself, a principal offender, and must be indicted and punished as such; and, in charging appellant with having stabbed the deceased with a knife, his act was stated according to its legal effect, and a verdict upon testimony tending only to show that he was present, aiding and abetting in the commission of the offense is responsive to the charge, and not a variance therefrom.There is no longer a distinction between principals in the first and second degree, but all are principal offenders, and are required to be indicted and punished as such.Evans v. State,58 Ark. 47, 22 S.W. 1026;State v. Kirk,10 Ore. 505;Usselton v. People,149 Ill. 612, 36 N.E. 952;State v. Payton,90 Mo. 220, 2 S.W. 394;Commonwealth v. Chapman,11 Cush. 422."

The court there quoted with approval from 2 Bishop's Crim Proc. § 1, § 3, par. 2, the following statement of the law: "Whenever one person's evil intent and another's criminal act combine, the allegations against the former may be either direct, that he did the thing, according to its legal effect, or indirect, that he instigated or procured the other to do it according to its outward form, and he did it.Whichever method is used in the averment, the proof may be that the defendant...