36 N.Y. Crim. 336 | N.Y. Sup. Ct. | 1918
The defendant moves for the dismissal of the indictment pending against him. The grounds of the application are unusual. The defendant stands indicted as ah accessory to the crimes of rape in the second degree, abduction, and assault in the second degree; each of these crimes being charged in a separate count. The indictment alleges that Agnes Beintner had committed these crimes, and thereafter the defendant, knowing and having reasonable grounds to believe that she was liable to arrest, with intent that she might escape arrest, trial, and! punishment, “ harbored, concealed, and aided ” her. Agnes Beintner has been tried on a separate indictment charging her with the offenses mentioned, and she has been acquitted. The fact of her acquittal is the sole basis of this motion. The contention of the defendant is that he cannot be convicted^ nor even tried, since the principal felon has1 been acquitted.
The questions are: (1) Is there an arbitrary rule that an accessory cannot be tried after the acquittal of his principal? and (2) Is the judgment of acquittal of the principal conclusive on the trial of the., accessory to establish that the principal did not commit the crime? In the defendant’s brief it is stated that it is “ necessary, however, to prove beyond a reasonable doubt the commission by the principal of the crime charged, and failure of such proof must result in the acquittal of the accessory.” With this/statement there is no dispute. The district attorney concedes that on the trial' of the accessory the commission by the principal of the crime charged must be established. This, however, leaves open the two questions above stated.
At common law an accessory, either* before or after the fact, could not be convicted unless his principal had been convicted or was outlawed, which was the equivalent of a conviction, unless they were tried together.' The one exception was where the accessory consented to' be tried before the principal. (Hale’s
This rule has been modified in England by different statutes. It was slightly modified in 1702 by the Statute of Anne (Anne, Stat. 2, c. 9), by providing that the accessory might be tried, not only when the principal was convicted, but also when the principal offender “ shall stand mute, or peremptorily challenge above the number of twenty persons returned to serve of the jury,” and notwithstanding that the principal felon was “ admitted to the benefit of his clergy, pardoned, or otherwise delivered before attainder.” Other statutory changes are found in 7 Geo. IV (chap. 64, § 9) and 11 & 12 Vict. (chap. 46, § 1). This latter statute was repealed; but its provisions re-enacted, by 24 & 26 Vict. (chap. 94, § 3). As to accessories after the fact, it was the law until 1847 that such an accessory could be tried. “ only with- or after the conviction of a principal felon.” But in that year, by section 2 of the statute of 11 & 12 Vict., just mentioned, it was provided that such an accessory might
This enactment, of course, would not change the common-law rule in this State, even if that still had effect here. (Section 70, General Construction Law [Consol. Law, chap. 22].) But there are no longer any so-called common-law crimes in this State. They are now all statutory offenses. (Penal Law, § 22; People v. Knapp, 206 N. Y. 373-380, 99 N. E. 841, Ann. Cas. 1914B, 243.) Under our Penal Law a party to a crime is either a principal or an accessory (section 26). If the crime is a misdemeanor, the person, who would be an accessory if the crime were a felony, becomes a principal (section 27). An accessory is defined to be a person who, after the commission of a felony, harbors or -aids the offender, with intent that he may avoid arrest, etc., having knowledge or reasonable ground to believe that such offender is liable to arrest, etc. (section 2). The punishment for being an accessory to a felony is specifically prescribed (section-19-34). And the same section provides that an- accessory may be indicted, tried, and convicted, “ whether the principal felon- has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.” Under our statute the offense of being an accessory to a felony is now a substantive crime, punishable without regard to the disposition of the principal felon.
There is considerable conflict in the authorities in this country as to whether the judgment in the trial of the principal felon is conclusive in the trial of the accessory, or whether it is merely prima facie proof, or not admissible at all as proof. Some of the courts hold that a judgment of acquittal of the principal is conclusive proof on the trial of the accessory that the principal did not commit the crime charged. (Ray v.
The Hew York cases, above cited, appear to adopt the rule of the earlier English cases, although the observations in Levy v. People (80 N. Y. 327) are merely obiter upon this point. The appeal -record in that case, which was tried before our Penal Code was adopted, shows that the district attorney offered proof of the conviction of the principal merely to establish the fact of conviction and not to prove that the principal had committed the crime charged. In fact, some of 'the -authorities fail to note the distinction between these two things. Under the common-law rule, where the conviction of the principal was essential, the judgment of conviction was admissible to prove that fact, without being admissible -as -evidence -of the guilt of the principal, which had to- be proved independently of the record. This was the situation in Jones v. People (20 Hun, 545). But whatever - force might have been given to the earlier Hew York cases, it is greatly weakened by the views expressed in the later case of People v. Kief (126 N. Y. 661, at pp. 663, 664, 27 N. E. 556). There the court said, in effect, that since the enactment of -o-ur Penal- Code a judgment in the principal’s action was not proof
In this State the authorities seemingly are in accord that a judgment in the principal’s action is not conclusive in the action of the accessory. Whether or not it is prima facie evidence is, as we have seen, in dispute. I see no reason why it should be admissible at all. It establishes nothing that is necessary to be proven in the accessory’s action. If a judgment of acquittal of the principal was to be prima facie proof on the trial of the accessory that the principal had not committed the crime, then a judgment of conviction of the principal would be prima facie proof that he had' committed it. But the theory under which judgments are admissible as proof of the facts determined shows that the judgment in question is not admissible in the action against the accessory. Judgments, when admissible in evidence, are conclusive determinations upon the facts involved, and are not merely prima facie proof of them. If a judgment were to be merely prima facie proof of the principal’s guilt or' innocence, then, of course, either side could offer further proof bearing on that question. When the jury came to pass on it, should they consider the judgment in evidence or merely the other proof ? If they could consider the judgment, what weight should they give to it ? How could they know upon what proof it was rendered, and, without knowing that, what value would it be as evidence, unless as matter of law it was held to be conclusive? To say that it is prima facie evidence seems to mean little or nothing. If it is evidence at all, it must be conclusive; otherwise, it should not be admitted. If a judgment is not res adjudicata on the questions involved1 it is nothing. (Kirby v. U. S., 174 U. S. 47, 19 Sup. Ct. 574, 43 L. Ed. 809; Miller v. White, 50 N. Y. 137-143, 144; Assets Realization Co. v. How
The conclusion is that a judgment in the principal felon’s ease, whether of conviction or acquittal, is not admissible for any purpose in an action against the accessory.
The motion is denied.
