*1 No. 13,755. People. Howard v. 594)
(51 [2d] P. 4, 1935. Decided November in error. Mr. Fancher Sarchet, for plaintiff Mr. Walter Prosser, Attorney General, Mr. Paul P. Assistant, people. for the F. Scherer, En Banc. the opinion
Mr. Chief Butler delivered Justice court. convicted C. F. Howard by Sam Rubin of Charles the fact to the murder sentence. He a reversal
Jones. seeks jury was sub- the case waived, At the trial a *2 upon stipulated which sub- facts, mitted to the court stantially follows: are as July left night Howard and Jones 1934,
On the of village took his Jones Park to hunt deer. the of Estes help way him gun along. to Howard the Jones asked On they straighten reached Rubin. When his troubles with village place, Howard Park, near the of Estes Rubin’s “straightened get things out.” house went Rubin’s way. friendly greeted had After Howard him in a Rubin only Jones fired minutes, or three the house been killing through Rubin. Jones then the window, a shot according the state- house, and, entered Howard’s if that he do the same to he ment, said would Howard keep ever crossed and Howard would have him, They days mouth then left the house. Two shut. requested help body. him the Howard move later Jones night they truck went a to Rubin’s house. The They body lying it fallen. where had carried the place body in truck to about one mile distant. Jones clothing body, from the “so removed varmints dispose they body among would of and it,” hid clothing pocketbook rocks. Jones took from Rubin’s containing They clothing place about took the to a $8. away body placed 200 feet about from the and place between some and then went to rocks, Jones’ stayed night. paid of rest Jones there Howard $5 gave money he him owed half of the him, pocketbook, pocketbook in the and threw the in the stove up. September, having and burned it noti- been disappearance of Rubin, fied sheriff and his deputies commenced a search for him. On 19th engaged while in the month, one of the search, deputies met Howard near Rubin’s house and conversed concerning disappearance. him Rubin’s Howard give any concerning deputy
did not information to the having Eubin. The information that led sheriff, received implicated disap- him to believe that in the Jones was pearance, possibly hearing murder, Eubin, and together Longmont, that Jones and Howard were seen accompany him him found Howard and had to the sher- ques- office. other iff’s the sheriff and officers There, during him for which time How- hour, tioned about any knowledge of ard denied all kind or nature of Eubin knowledge of and his and his and all Jones whereabouts, questioning, Finally, an hour whereabouts. substantially and stated facts Howard admitted accompanied forth. He thereafter the sheriff above set places body to the where the and other officers clothing him been hidden and Jones. officers had They body clothing. took them to found the presence there, Fort sheriff Collins. Howard signed which was statement, other a written officers, *3 practically Thereafter the same as his oral statement. charging Jones and Howard an information was filed disappeared jointly Jones had of Eubin. with the murder At the trial Howard was found never found. and was present guilty. There then filed the information charged, in that substance, which at a time and Howard, knowledge place full that with Jones killed and named, “unlawfully conceal murdered did said crime Eubin, magistrate, then and did harbor and from charged protect trary with said con- Jones, crime, Sam said etc. statute,” to the form of finding a Howard was The court made “guilty charged information.” A motion for as and Howard was sen- denied, made and a new trial was imprisonment. tenced to Compiled provides: “An 6646 of Laws of
Section person accessory fact is a a full after the that a crime has been conceals committed, magistrate, person or harbors and from the guilty Any person charged found crime. or accessory found after the imprisoned any exceeding fact shall be for term not two years, exceeding and fined in a sum five hundred dol- * * lars . for Howard contends, Counsel first, prosecuted accessory cannot as an
fact until after the convicted; has been and, as been convicted of therefore, Jones had .not the mur subject der, sory. Howard was not as an acces At common law a conviction of the was re- quired precede accompany or of one subject to the same punishment principal. Wharton’s Criminal Law (12th Ed.), §281. Unlike common our law, statute independent has made the offense substantive and prescribes penalty prescribed far less severe than that original for the one who commits the crime. Moreover, statutory elements of crime are different from those of the common-law crime. at Thus, common law, the accused must have rendered assistance to a some and that felon, assistance must such have been shel- prosecution, ter him to extent as, instance, by concealing him house, and the like. 1 Wharton’s (12th Ed.), §281. statutory Criminal Law offense, unlike the common-law offense, committed ways; namely, (1) by concealing either the com- magistrate, (2) by mission of the crime from the or har- boring the felon.
The offense which Howard was convicted a statu- tory we offense, and hold the common-law rule in- *4 by apply. voked counsel Howard does not by
2. Another contention made
counsel for How
subject
that
ard is
Howard was not
as an
assuming
accessory because,
pro
he harbored and
Jones at that time
Jones,
tected
had not been formally
He
with murder.
cites
v.
129
Garnett,
support
The Nebraska statute Heyen 114 Neb. State, In fact the ours. same as the same made W. counsel 783, 210 N. defendant’s makes here, for Howard contention counsel upon to fol- declined the ease. The court Garnett relied part: saying the “When decision, low the Garnett purpose legislature of the stat- intention language by the are considered, used, ute, as disclosed may ‘charged found of the crime’ with or words subsequent proceedings legal to the mean Law-abiding gener- protecting citizens criminal. screening ally high-handed crimes and revolt at necessity justice. The from criminals society crimi- condemning violence and harbored from criminal statutory law in common and nals resulted legislature meant to enact an effective accessories. (Italics language remedy are used that end.” ours.) subject has of the Arkansas statute on the
One section provision the ours. In section it is same as another may provided: “An before or after the fact punished, although arraigned, tried indicted, may principal not tried, offender have been arrested and discharged.” pardoned or otherwise have been “charged” It word will be observed appear Ark. Jones, in the latter State section. judge sustained a demurrer 154, W. the circuit S. ground that the indictment did on the the indictment judicial charge pend- allege or accusation that a ing against at the time the' defendant alleged have committed acts which constituted fact; as stated or, crime held “under trial court Court, knowingly pro- it is not a crime harbor and the statute judicial pro- indictment or other felon tect a ceedings unless pending for his then *5 apprehension punishment.” among The court said things: interpretation other in “We do concur this * * * of the statute. One with a full protects that the crime has been committed, harbors and guilty punished felon, be principal whether such, offender or not. be arrested Any permit other view of the statute would go unpunished flagrant who has been most act of a felon before a warrant procured of arrest could or an be indictment be could returned. * * “* language fairly of a statute should be rationally interpreted carry so as out the manifest general, may safely intention of its ‘In framers. susceptible said that when words a statute are of two absurdity, of which constructions, other will lead to an will adopted.’ the latter will not, Endlich on Interpretation of 258. Statutes, ‘charged applied
“Now, the words with,’ perpetration of crime, cannot be said have a well- legal significance. known and established Chief Justice speaking Supreme Andrews, for the Court of Connecti- expression “charged applied cut, said: ‘The with,’’ as to a crime, is sometimes used a limited sense—intend- ing the precedes accusation of a crime which a formal trial. expres- a fuller and more accurate sense, responsibility sion includes also the for the crime.’ * ** Spiegel, Drinkall v. 68 Conn. “The Court of California have taken the contrary construing view in a statute identical its lan guage (People 364); Garnett, but, with due agree deference to the learned we are court, unable to interpretation. “Reversed and remanded, with directions to overrule the demurrer.”
Believing that the Nebraska and Arkansas cases an- nounce the better rule, we hold that the fact that no charge formal has been made before
the
prevent
harbors and
accessory.
*6
being
the crime of
defines
statute
Moreover,
provides
accessory
that crime
fact,
concealing
may
the crime
the commission
of
consist
harboring
information
felon. The
ways.
charges
the crime
both
committed
that Howard
alleged;
finding
guilt
made a
The court
say,
crime
that Howard committed
it found
that is to
require
clearly
ways.
The former
in both
charge
principal.
charge against
in the
The
formal
conjunctive
People, 59
permissible.
In
was
Moffitt
under a stat
we held
where
149
Pac.
Colo.
ways,
it
committed
different
the offense
ute
ways, using
possible
charge
the con
proper
in all
it
is
disjunctive. To the
junctive
in the
the statute is
where
People,
Kingsbury
3. the crime in committed if Howard Indeed, evidence. proper; ways, was but only the sentence one he opinion shows that the evidence we are ways. in both the crime committed charge, acquittal it murder on the Howard’s accessory. his conviction bars contended, is there is plain require too is in the contention merit no discussion. judgment affirmed. Hilliard dissents.
Mr. Justice Hilliard, dissenting. Justice Mr. was my defendant considered, record view, resulting conviction. his
amenable §6646) provides that (Compiled Laws 1921, The statute person after full “An the fact is committed, conceals has been a crime magistrate, or harbors and ’’ charged with or found of the crime. protect-
Whatever of or of concealment, ing subsequently charged with the crime murder previous all was, it occurred thereto. until Indeed, pertaining defendant here disclosed the facts to the homi- party, party cide against a third such third was not informed
for murder, and when this defendant joined party was apprehended, as a defendant. The third has not been charge
but on the defendant, tried of mur- acquitted. Subsequent acquittal der, was the in- charging formation him with agreed
filed, on all facts, murder he trial, guilty. adjudged to be Construing essentially a like on facts not statute, dif fering, Court of California said that “the *7 simple more word‘conceal,’ holding means than a with knowledge possessed by party felony that a has been committed.” “Mere silence,” court added, “ of its commission is not sufficient to party accessory. Again, constitute the an the word *charged,’ as used means a com section, formal plaint, information or indictment filed the crimi possibly might nal, without arrest warrant be suffi cient.” Conviction there Gar was reversed. nett, Pac. if case, followed, opinion of the court in indicates, would result judgment. reversal this since the of Ar But, courts kansas and Nebraska have criticised the California hold ing, the conclusion is that we should do likewise and sus tain this conviction. Neither the Arkansas nor Nebraska study opinions, I logic court, as their has answered the of the California decision, nor have we. neither Besides, jurisdictions indulged, where the criticism considering nearly a state of facts so like the Cali fornia case wholly as is this record. The Nebraska case is refuge different, and the Arkansas court finds in statutes not to be found in California or here. The Arkansas and our I fear me, seems courts, Nebraska despicability of appraised the so has done, court they accessory, culprit offending. “making” fit his law to justified felt 13,760.
No. Society States the United Equitable Life Assurance Floyd. 1181) (51 [2d] P. 4, 1935. November Decided super- application for Judgment on en banc affirmed opinion. written without sedeas plaintiff error. Langdon Messrs. & Barbrick, error. for defendant George Mr. Baker, B.