180 S.E. 1 | W. Va. | 1935
Lead Opinion
Robert M. Lowe, respondent, sheriff of Brooke County, prosecutes error to an order of the circuit court of said county discharging from his custody, on writ of habeas corpus, Wessie Moore, relator.
She stands convicted of voluntary manslaughter and is being held pending disposition by the trial court of her motion in arrest of judgment. The conviction resulted from a trial under an indictment charging her as accessory before the fact to the murder of her husband, James Moore. The jury specifically acquitted her of murder. Cleve Holley, the slayer, confessed to first degree murder and was sentenced to life imprisonment.
It is the contention of the relator, approved by the circuit court, that under an indictment as accessory before the fact to murder there can not be a conviction of voluntary manslaughter; that such an indictment is not inclusive of the lesser offense.
The right of relator to have this matter determined in habeas corpus was challenged by the respondent on the theory that relator's proper course would be upon writ of error, if and when judgment be entered on the verdict. Irregularities are subjects for review; illegalities, for habeas corpus, where personal liberty is at stake. Ex Parte Mooney,
An accessory before the fact is not the principal actor in the crime, nor present at its commission, but is one who, in some manner, procures or instigates its performance. IV Blackstone's Commentaries, p. 35; 1 Wharton's Criminal Law (12th Ed.), sec. 263; 1 Ruling Case Law, p. 144; State v.Ellison,
One accused as accessory before the fact must be indicted as such and not for the offense committed by the actual perpetrator of the crime — the principal in the first degree.State v. Powers,
Not directly involved here, but having effective bearing on the issue, is the proposition of whether a person may be convicted as accessory before the fact to voluntary manslaughter.
It was the common law rule that in manslaughter there could be no accessories before the fact. The holding seems first to have been made in Bibithe's Case (1597), 76 English Reports (Reprint) 991, where it was determined that a slayer having been convicted of voluntary manslaughter instead of murder, the accessory before the fact should be discharged. That case is cited in I Hale's Pleas of the Crown 437 in support of the statement: "In manslaughter there can be no accessories before the fact, for it is presumed to be sudden, for if it were with advice, command, or deliberation, it is murder and not manslaughter, and the like of se defendendo." Following this view Sir William Blackstone states: "In manslaughter there can be no accessories before the fact; because it must be done without premeditation." IV Blackstone 191. Whether that concept still obtains in England is not clear from cases available. Illustrative: Regina v. Taylor (1875), 13 Cox's Crim. Law Cases 68.
Some of the American courts have followed the principle ofBibithe's Case. State v. O'Shields,
"Under the old law, the defendant was first convicted, and then the accessory was charged with being accessory to the offense which the conviction covered. But now that instigation is a substantive offense, it must be remembered that the offense of the instigator is not necessarily of the same grade as that of the perpetrator. The instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool someone whom that enemy has aggrieved, and who is infuriated by his grievance. Hence an accessory before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter; or the accessory before the fact (instigator), acting in hot blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder." The author uses "instigator" as synonymous with "accessory before the fact." Vide, sec. 268.
The common law requirement that the principal be convicted before prosecution of the accessory could proceed, has been changed in this state by statute. Code,
The record of the trial of relator is not before us. Nonconstat but that she acted in hot blood in inciting Cleve Holley to kill her husband, and that there was no opportunity for her to retract after the incitement was given. On the other hand, if she did not act in heat of passion, so that there is no logical nor technical basis for the manslaughter verdict, may such verdict nevertheless be upheld under principles next discussed?
A conviction of manslaughter under a murder indictment will not be set aside on the ground that the evidence is compatible only with murder or innocence. II Michie on Homicide, sec. 342; Wharton on Homicide (3d Ed.), sec. 653; State v. Prater,
In the light of the fact that, under settled law, a manslaughter verdict against a principal will be upheld (if there was no prejudicial error at the trial), though the evidence clearly demonstrated that he was guilty of murder, the query arises as to whether a person tried as accessory before the fact to murder, guilty of murder if guilty of anything (the elements of manslaughter not being present), may be heard to complain because he received merely a manslaughter conviction.
If a person may be convicted as accessory before the fact to voluntary manslaughter, and we are of opinion that such a conviction may be proper (supra), there would seem to be very narrow basis for the position that he can not be convicted of voluntary manslaughter as accessory before the fact to murder.
In homicide cases, verdicts of lesser degrees of guilt are upheld, where the evidence establishes a higher offense and does not present the elements of the lesser, since a convicted person can not be heard to complain of an error in his favor. Because jurors, actuated by compassion or otherwise, in a *170 given instance, have failed to do their whole duty and have compromised with justice by rendering a verdict for a lower degree of guilt than should have been found, it by no means follows that the accused should go free. In strict logic, a conviction of manslaughter, presupposing heat of passion and excluding malice, perhaps can not be justified where the evidence clearly discloses malice and excludes passion. But the lesson has been taught by experience that it is necessary to uphold such lesser verdicts for the reason that, if not upheld, persons guilty of serious crime often would go unpunished. In those instances there is presented a matter of practical administration of criminal law and not of strict logic.
The offense of accessory before the fact does not rest alone upon instigation, however much there may be. Dual elements must concur; first, the incitement or encouragement, and second, the consummation by the principal offender. When the principal has acted — and only then — does the accessory before the fact become amenable to the law. State v. Ellison,
If an instigated crime was murder, and the instigation be proved, the accessory stands before the law prima facie a murderer; but, as stated, in conceivable circumstances, he may have acted in heat of passion. This, he may show. The accessory is entitled to neither greater nor less consideration than the principal. Their status is substantially the same. If a verdict against the principal (murderer) for voluntary manslaughter is upheld by the law, when, logically, he should have been convicted of murder or acquitted, no reason is perceived why the same principle should not apply to the accessory.
The suggestion is made that though voluntary manslaughter is included in an indictment for murder, such lesser offense is not included in an indictment for accessory before the fact to murder. Our answer is that inasmuch as under the law of *171 this state the guilt of an accessory before the fact is not contingent upon the conviction of the principal, and the accessory is punishable as a principal, the distinction between indictments for the two offenses, respectively, in large measure loses significance. In effect, though not actually, an indictment for accessory before the fact to murder places the accused on trial for murder. The difference between the two situations is theoretical rather than real.
"At common law an accessory cannot be guilty of any other or higher grade of crime than that of which the principal is also guilty. And generally the guilt of the principal in the second degree, or of one who is present aiding and abetting, is measured by the intent of the one actually committing the offense. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as that of the actual doer. But it is now generally held that principals, accessories, and aiders or abettors may be convicted of different grades or degrees of crime, according to their respective intents. This has often been held to be true in homicide cases, for example. So it has been held that an accessory, or principal in the second degree, or an aider and abettor, in a homicide may be found guilty of murder in a higher or lower degree than the actual perpetrator of the crime, or may be convicted of murder though the perpetrator has been convicted of manslaughter, or of manslaughter though the perpetrator has been convicted of murder." I Brill, Cyclopedia Criminal Law, sec. 257.
In the light of the authorities cited, and, for the reasons stated, we have reached the conclusion that the learned circuit judge was in error in ordering the discharge of the relator. We therefore reverse the judgment and dismiss the proceeding.
Reversed; dismissed.
Dissenting Opinion
I cannot concur with the result reached by the majority of the court in this case, nor with the reasoning by which that result is arrived at as stated in the opinion. As deferentially *172 as the fact of disagreement will permit, I wish to point out the reasons for my position.
The majority opinion states, speaking of the status of principal and accessory before the fact in West Virginia, "* * * the distinction between the indictments for the two offenses, respectively, in large measure loses significance. In effect, though not actually, an indictment for accessory before the fact of murder places the accused on trial for murder." I respectfully disagree with these statements. In West Virginia, the difference between principals and accessories has never been abolished by statute, and, so far as I have been able to find, has always been drawn in our decided cases. As recently as the case of State v. Powers, (1922)
"It has been said: 'The distinction between principals and accessories before the fact is in most cases a distinction without a difference, and often requires nice and subtle verbal refinements to express it. It is supposed to have originated at time when criminal lawyers puzzled their wits and taxed their ingenuity to invent metaphysical shades of distinction, such for instance as that between principals and accessories at the fact, which once existed, but is now exploded. The distinction between principals and accessories before the fact is fast following its kindred technical refinement.' State v. Poynier, 36 La. Ann. 572. Some of the states have provided by statute that all parties to a felony, either before or at the fact, shall be principals; and under such statutes all parties, who at common law would be accessories before the fact to larceny, become principals, and may be convicted as such. California, Minnesota, Montana, Pennsylvania and Texas have passed such statutes. However, in this state we still recognize the distinction between accessories and principals, and an accessory to be convicted must be indicted as such."
It is undoubtedly settled law in West Virginia that an accessory must be indicted as an accessory, and cannot be indicted as a principal. State v. Roberts,
No question of a variance between the indictment and the verdict was presented in the Prater case, because there is express statutory authority for a verdict of manslaughter upon an indictment for murder. There is no statutory authority in this state for a verdict convicting as principal upon an indictment as accessory before the fact. No case that I have been able to find by exhaustive effort holds that it may be done in the absence of statutory authority.
There is authority holding expressly that it may not be done.The King v. Gordon, 1 Leach 515, 1 East P. C. 352, 168 Eng. Rep. 359; Casey v. State,
To argue that this defendant cannot be heard to complain of a conviction of voluntary manslaughter because, perchance, she might have been convicted of being accessory before the fact to murder is, without proof before us, to prejudge her for the sake of argument.
The common law doctrine to the effect that there could be no accessory before the fact to the crime of manslaughter has undergone many contortions of expression, and is, apparently, subject to some later modification even in the absence of statute. It is submitted that the doctrine in its essence is based upon the supposition that there can be no procurement nor incitement of an offense, the essential element of which is that the perpetrator acted under such hot blood as temporarily to dethrone his reason. If this be true, then the common law doctrine, it would seem, should be restricted to voluntary manslaughter. So restricted, it would appear to me to be sound law in West Virginia today to say that there can be no accessory before the fact to voluntary manslaughter. It is difficult for me to believe that a person, not present at the time the offense is committed (for then under our statute and at later common law he would be a principal), could have the self-possession necessary to weigh the chances and to decide, through fear, through cunning, or what not, that procuring another to commit a crime would be preferable to *175
undertaking the commission of the crime himself, can be said to act in such hot blood as to dethrone reason, and reduce the crime from accessory to murder to accessory to manslaughter. But the question of whether there may be accessories before the fact to manslaughter, as stated in the majority opinion, is not the question directly involved in the decision of this case; and for that reason, the conflicting cases on the subject need not be analyzed. I respectfully submit, however, that the cases used in the majority opinion to illustrate that the common law doctrine has, in certain jurisdictions, been changed by the courts in this respect, fall short of that purpose. InThomas v. State,
The suggestion is made that the holding here is necessary to further the practical administration of the criminal law. I say with all deference that such a consideration is a matter for the legislature and not for the courts. So far as I have been able to find there is no authority for viewing this question in that light and all of the cases dealing with the distinction between principals and accessories consider the matter as a question of fundamental substantive law. See the discussion of Chief Justice Marshall on a kindred question in "Opinion on the Motion to Introduce Certain Evidence in the *176 Trial of Aaron Burr, for Treason, Pronounced Monday, August 31." 4 Cranch 470, 494.
In my opinion the common law distinction between principals and accessories has never been abolished in West Virginia and each remains, under our law, a substantive offense. This being so, I do not agree that the two offenses can be treated interchangeably for the purpose of either indictment or conviction. I cannot here attempt exhaustively to discuss the cases on this question, but references to many of them will be found conveniently gathered in a full note to State v. Whitman, 14 Ann. Cas. 309, 311.
Believing that the verdict before us constituted an attempt to convict the accused of a different substantive offense from the one upon which she stood indicted, I am of the opinion that the learned trial judge reached the correct conclusion and that the judgment should be affirmed.
