Loeb v. State

Apr 15, 1909
1666
Reporters:
, ,
Before:
Powell
Powell, J.

(After stating the foregoing facts.)

When the negro, Martin Wyatt, was about to testify for the State’ that the defendant had employed him to sell whisky, beer, etc., and that he, in pursuance of this arrangement, had sold the liquors for the defendant, the defendant’s counsel objected to the testimony,, on the ground that the indictment alleged that the defendant himself sold the liquors personally, and did not allege that he sold them by an agent or employee, — that to prove a sale through an agent, or employee would show a fatal variance from the manner in which the offense is charged in the indictment. The court overruled the objection, and in the petition for certiorari this is made a ground of error. In the argument counsel has strenuously stressed upon us the proposition that an indictment should set forth the offense with such particularity that the defendant will be informed with reasonable certainty of the nature of the charge against him,, and will be protected from surprise brought about by the fact that the •State on the trial will offer testimony to convict him by proof of a transaction not naturally indicated by the language of the indictment; that a defendant charged directly with the sale of liquor would hardly expect the State to attempt to make out this-*27crime by proving that some other person made the actual sale, while he (the defendant), though many hundreds of miles away, procured, counseled, commanded, aided, or abetted it to be done. The insistence, however, is not a new one; it has been presented to the courts before a number of times, and, despite its plausibility and its apparent reasonableness, has been almost uniformly rejected. In the ease of Kinnebrew v. State, 80 Ga. 236 (5 S. E. 56), in which the defendant was charged with the illegal sale of liquor, and the proof was that the sale was made by his clerk in his absence, the •same proposition now asserted by the plaintiff in error was contended for, and Chief Justice Bleckley, speaking for the court,, said: “The reply we make to the learned historical argument with which the able counsel for the plaintiff in error favored us is, that had we been here ‘in the beginning/ and had he been here to make it, we should probably have yielded to it; but a contrary construction has so long prevailed, and so many hundreds, if not thousands of cases, have in the superior court practice been rested upon it, nothing but the clearest light of truth would now justify a repudiation of the common-law rule.” In the ease of Hately v. State, 15 Ga. 346, it was held: “He who procures, counsels, commands, or incites his clerk or agent to commit a crime, in his absence, is guilty as an accessory before the fact, and can not be convicted on an indictment which charges him with having jointly with his clerk committed the offense, as principal.” In the Kinnebrew case, supra, this holding is declared to be obiter and unsound, and it is held that the common-law rule that there are no accessories in misdemeanors, but all are principals, is still of force in Georgia, and that the defendant may be convicted of a misdemeanor, under an indictment charging him with committing the act, — committing it as principal, — though the proof shows that he did not personally commit it, but was connected with it in some relationship which would make him an accessory if the offense had been a felony. This rule has been applied in a large number of cases. See Mims v. State, 88 Ga. 458 (14 S. E. 712); Palmer v. State, 91 Ga. 152 (16 S. E. 937); Forrester v. State, 63 Ga. 350; Rooney v. Augusta, 117 Ga. 709 (45 S. E. 72); Statham v. State, 84 Ga. 25 (10 S. E. 493); Kessler v. State, 119 Ga. 301 (46 S. E. 408). Hardship may sometimes come from the operation of this rule; it is nevertheless the law. We may say in passing, however, that the trial *28judges can largely guard against injustice being done under the operation of the rule; and we have no doubt that if, on the trial of a case, it should appear that the defendant had honestly and earnestly attempted to inform himself of the particular transaction for which he was being prosecuted, and the State’s counsel had declined to let him know specifically what transaction he would be called upon to defend, and that the defendant was really taken by surprise at the nature of the testimony introduced against him, the judge would, by some means — postponing the trial, continuing the case, or otherwise’ — give him an opportunity to get his proof. In the present case there is not the slightest suggestion that the defendant did not know what transaction he would be called upon to defend. Indeed, it is candidly admitted that he did know. ■

2. There is also an assignment of error complaining that the court sustained an objection to a question asked by the defendant’s counsel of a witness for the State. Since the question on its face does not appear to have related to a matter relevant to the investigation, and since the court was not informed at the time of what testimony counsel expected to elicit in answer to the i question, according to repeated rulings of this court and of the Supreme Court, the exception is not meritorious.

3. Exception is taken to the refusal of the court to give to the jury a number of instructions duly requested in writing. We have examined all-of these requests and have compared them with the full charge of the court, which is also contained in the record. In our opinion they do not require discussion at length, but may be disposed of by tlie general statement that they are not meritorious, for one or the other of two reasons, — either that the judge fairly and fully covered them in the general charge, or else that they were not sound as propositions of law applicable to the case.

4. Exception is taken to the following charge of the court to the jury: “If you find, under the evidence in the case, that illegal sales of liquor were made in Morgan county by some other person than the defendant, but that the defendant did knowingly aid and abet these sales, or that, being absent at the time they were’ made, he did yet procure, counsel or command another to make them, he would be held responsible as a principal, and would be guilty under this presentment for selling liquor in Morgan county.” We think that this was a pertinent, apposite *29charge, stating the law applicable to the case under investigation. There was no evidence that Loeb himself personally sold liquor in Morgan county; but it was not necessary that this should be shown, in order for the defendant to hare been lawfully convicted. If the jury believed the testimony of the negro, Martin Wyatt, that Loeb hired him to run the business and to sell the liquor as a mere employee, the defendant should have been found guilty on the theory that he procured or commanded the sale. If Loeb induced Wyatt to sell liquor illegally‘‘) whether as his agent or on his own account, he was -guilty on the theory that he counseled the crime. More than this, if he knew that the negro was engaged in selling liquor illegally in Morgan county, and nevertheless gave him, loaned him, sold him, or otherwise furnished him liquor, or glasses, or other paraphernalia with which to carry on the business (and a substantial portion of this is practically admitted by the defendant’s own testimony), he was guilty on the theory that he aided and abetted the crime. Indeed, we can accept the contention of the defendant that the negro Wyatt, the State’s chief witness, is the veriest liar in all the land, and yet ■the conclusion that the defendant is guilty is almost irresistible. Loeb, seeing and knowing of the large amount of liquor that this negro was buying and having shipped to him, seeing and knowing that he had procured a Federal license as a retail liquor dealer in the county of Morgan, naturally knew therefrom, as a man of ordinary intelligence, that the negro was violating the law,— that he was engaged in the illegal sale of liquor. And one who knowingly furnishes the proprietor of a “blind tiger,” or other place where liquors are illegally sold, the liquors with which to run that business, whether such furnishing be by sale, gift, or in any other manner, bears, to the illegal act of the proprietor of the place, a relationship which, if the offense were a felony, would make him an accomplice, and which, since the offense is a misdemeanor, makes him a principal. The fact that the defendant acted as the agent of the Lomax Distilling Company made no difference. The law does not look to the civil relations existing between the parties, in determining criminal responsibility in such cases. The defendant had no larger immunity from criminal responsibility for aiding and abetting Wyatt’s act, by reason of the fact that he did the acts of aiding and abetting as the agent *30of a corporation, than he would have had if he had done so on his own behalf. All who knowingly participate in criminal transactions are, in misdemeanor cases, equally guilty, whether they participate as chief or principal actor, or as a mere accessory in the broader sense of the word, — whether on their own behalf or as agent or employee of another. The aiding and abetting is what counts. “Aid” is a plain, homely word, with a meaning well and generally understood. “Abet” smacks more of technical terminology, but it is almost -synonymous with “aid.” The two words together “comprehend all assistance given by acts, words, or encouragement, or by presence actual or constructive.” Raiford v. State, 59 Ala. 106, 108. “The word ‘abet’ includes knowledge of the wrongful purpose of the perpetrator, and counsel and encouragement in the crime.” People v. Dale, 122 Cal. 486 (55 Pac. 581, 68 Am. St. Rep. 50). As Judge Sibley so succinctly expressed it in his charge to the jury: “The law in criminal cases does not take accurate note of the civil relations of principal and agent; many of the principles relative to that relationship which are applied in civil transactions do not apply in criminal matters; for instance, it would not be a defense for a man, in doing any act for which he would be criminally responsible, that he did it simply as the employee or representative of some other person, if at the time he was of sound mind, and of an age capable of committing a crime, and acting under no compulsion or coercion. In this case it would not be a defense that the defendant was simply acting as the representative or employee of some other person. The law does not undertake to weigh nicely and precisely a civil relation that may be shown to exist between the defendant and that other person, but puts it under the rule of law I have just stated.” It is wholly immaterial whether Wyatt was Loeb’s agent, or whether Wyatt was the principal and Loeb merely knowingly assisted him. We recall what Judge Bleckley said in Forrester’s case, 63 Ga. 350, where the defendant declined to sell liquor himself, but allowed his negro servant, Mary, to sell it in his kitchen: “In the defendant’s kitchen, by his servant, in his presence, and with his co-operation through the responses, ‘Go to Mary’ and ‘Give the money to Mary,’ the traffic was carried on. There is little doubt that the defendant is the deity of this rude shrine, and that Mary was only the ministering priestess. But *31if she was the divinity, and he her attending spirit to warn thirsty devotees where to drink, and at whose feet to lay theii tribute, he is amenable to the State as the promoter of forbidden ‘libations. Whether in these usurped rights he was serving Mary ■or Mary him, may make a difference with gods and goddesses, but makes none with men.”

5. There are a number of assignments of error in addition to those which we have discussed in terms. We do not deem it profit- ■ able to set them out in extenso. None of them raise points that would be especially valuable as precedents. We have given them •■all careful consideration. None of them present any reversible ■error. The defendant was fairly tried and legally convicted.

Judgment affirmed.

Bussell, J., concurs specially.