People v. Outeveras
48 Cal. 19
Cal.
1874
Check Treatment
By the Court, Wallace, C. J.:

Thе prisoner was convicted, upon the statute of 1864, of a felony committed in breaking and entering a house in the day-time, with intent to commit larceny. The indictment under which he was convicted contains but one count, and alleges as follows: “The said Bichard N. Carter and Albert Outeveras, on the 28th day of December, A. d. 1871, at the City, County and State aforesaid,, about the hour of four of the clock, p. at., of the day-time of the same day, *21-with force and arms, the building of one Clara N. Mann, there situate, feloniously did break and enter, with intent then in said building to commit larceny, contrary to the form, force and effect of the statute,” etc.

It appears that the prisoner, iri company with one Carter, jointly indicted with him, approached the house mentioned, when, in pursuance of an understanding had between the two, Carter entered the house and committed a larceny by Stealing two silver cups therefrom. The prisoner did not enter the house, but, at the request of Carter, he waited outside, and in the immediatе vicinity, for fifteen or twenty minutes, until the latter ‍‌​​​‌​‌‌‌‌​​‌‌‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌​​​‌‌‌‌​‍came out with the stolen property. When Carter emerged from the building with the cups in his possession, the prisoner inquired as to what property he had obtained, and being informed, the two repaired together to a room which they occupied together, and there endeavored to obliterate the names engraven on the stolen cups, and the prisoner, having afterwards put them in pawn, the two shared the proceeds between them.

The еvidence was given under objection, and the prosecution having rested,' the defendant moved the Court to instruct the jury to find a verdict of not guilty, on the ground that there was a fatal variance between the indictment and the proof, in that the indictment рroceeded against him as being a principal in "the felony, while the proof showed'at "most that he was “an accessory, aiding and abetting.” This motion was denied, and an exception was thereupon taken by the prisoner. The Court then chаrged the jury that, if they should find the fact to be that Carter and the defendant had made an arrangement for stealing property, by which the actual taking was to be done by Carter, and that, in pursuance of that arrangement, the prisoner was present аnd waited outside the house while Carter went in ■and committed the larceny, they should find the defendant guilty, as charged in the indictment. To this instruction the prisoner reserved an exception.

Under the rule of the common law the circumstances in proof constitute the prisoner a principal in the second degree, as being constructively present, ope et consilio, aiding *22and abetting the commission of the act, with the design of giving assistance, and near enough to have actually afforded it had it become necessary. The statute concerning crimes and punishments (Sec. 11), is as follows: “An accessory is he or she who stands by and aids, abets or assists, or who, not being present aiding, abetting or assisting, hath advised or encouraged the commission of the crime. He or she whо thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, ‍‌​​​‌​‌‌‌‌​​‌‌‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌​​​‌‌‌‌​‍and punished accordingly.” Principals in the second degree, that is to say, persons who stand by aiding and abetting the. act, and accessoriеs before the fact; that is to say those who, not being present at the act, aiding, abetting or assisting, have, nevertheless, advised and encouraged its perpetration, are all termed accessories by the statute, and under its provisions arе constituted principals. So by the Act to regulate proceedings in criminal cases (Sec. 255), it is provided as follows: “ Ho distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degrees in cases of felony; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the of- , fense, or aid and abet in its commission, though not present, shall hereafter be indiсted, tried and punished as principals.” The substance of these provisions, taken together, is, that principals in the second degree and accessories before the fact, are all deemed chief actors; that is, principals in thе first degree in the commission of the felony, and are to be indicted, tried and punished as such principals. Under the statute a prisoner can no longer be recognized as a principal in the second degree, nor an accessory bеfore the fact in the commission of a felony. These distinctions no longer obtain for any purpose in the administration of the law of felony, the statute having substituted in their stead the more convenient rule of the common law of misdemeanors, where such distinctions had never been recognized. This was the view taken in 1846 by the Supreme Court of Illinois, upon a statute of which the eleventh Section of out Act concerning crimes and punishmentSj will *23bo seen to be an exact transcript. The prisoner hаd. been indicted as a principal in the crime of murder, and, at the trial, the Circuit Court was asked to instruct the jury that evidence of guilt as accessory before the fact would not support a conviction under the indictment. The instruction was refused, and upon this point the Supreme Court said:

“The correctness of the decision of the Court in refusing to give these instrudtions must depend upon the construction of our statute. By the thirteenth section of the Criminal Code it is declared: ‘An accessory is he or shе who stands by and aids, abets or assists, or who, not being present, aiding, abetting or assisting, hath advised or encouraged the perpetration of the crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly.’ And the inquiry is, whether proof that the prisoner was accessory to the crime before the act will sustain an indictment against him as principal. The Act says that such accessories shall be deemed аnd considered as principals and punished accordingly. This Act, then, makes all aecesssories at or before the fact, principals. The declaration that they shall be ‘deemed and considered,’ is as unequivocal an ‍‌​​​‌​‌‌‌‌​​‌‌‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌​​​‌‌‌‌​‍expression as if the Act had said, ‘are hereby declared to be.’ It is true, the Act states what an accessory is, but then it declares in substance that he is principal. It was in perfect harmony with the system pursued by the Legislature to go on and define what an acсessory is, as it has defined all other offenses which it has attempted to enumerate, and it does not detract from the force of the provision that they shall be deemed .and considered as principals. The distinction between accеssories before the fact, and principals, is in fact abolished. At the common law an accessory at the fact might be indicted and convicted as principal, for the common law declares that he who stands by, advises and encourаges the murderer to give the blow, gives the blow himself as much as if he held the weapon in his own hands. Our Legislature has gone one step further, and provided that he who,' not being present, hath advised *24or encouraged the giving of the blow, hath given the blow as much аs if he had stood by and encouraged it, or even had struck with his own hands. It is no more a fiction of law to declare that he gives the blow, by advising and encouraging it beforehand, than it is to affirm that he gives it by advising and encouraging it at the time. Both proceed upon the principle that what we advise or procure another to do, in the eye of the law, we do ourselves. All are principals, and as such, should be indicted and punished. Indeed, they must be indicted as principals or not at all, for they arе declared by the Act to be principals. If they are not to be indicted as principals, the very object of the law is defeated; if they are to be indicted as accessories, they must be tried and convicted as accessories, аnd then they could not be tried till after the conviction of the principals; for as we have before seen, we are bound by the rules of evidence of the common law, of which that is one. Such is the inevitable consequence, unless they arе indicted and tried for murder, of which the statute says they shall be deemed and considered guilty. There is no doubt but that the pleader may, if he choose, and perhaps it would be advisable to describe the circumstances of the offense as they аctually transpired, as it is in an indictment against an accessory before or at the fact; but if the stating part of the indictment be that way, it should conclude as for murder, for that is really the offense of which the party is guilty, if at all. It was urged that there was a variance between the proof and the allegation. That is true in one sense, and so it is true of an indictment for murder against an accessory at the fact; so it is too of an indictment for larceny against a clerk, an apprentice, a bailee, or a lodger, for embezzlement, which is declared by our statute to be a larceny, and they are always indicted as for stealing, taking and carrying away in the usual form. They are charged with a felonious taking, when, in truth, it is only a felonious conversion; and yet it is held there is no variance, for the law declared in effect that the felonious conversion shall make the original taking felonious, although it were lawful at the time. Then, as by the law in this case, the acts of the principal *25are made the acts of the accessory, he thereby becomes the principal, and may be charged as having done the acts himself. He shall be deemed and considered as principal, and be punished accordingly. The Circuit Court decidеd correctly in refusing these instruction." (Baxter v. The People, 3 Gilman, 381.)

The case mainly relied upon to reverse the ruling ‍‌​​​‌​‌‌‌‌​​‌‌‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌​​​‌‌‌‌​‍of the Court below upon this point, is that of People v. Campbell, 40 Cal. 129. In that case the judgment was reversed here upon the point that the jury, in finding the defendant guilty of murder, had not designated the degree of the crime. In the course of the opinion in the Campbell case it was, however, assumed that the Court had already, in Trim’s case, 39 Cal. 75, given an authoritative construction to the statute, and determined that one guilty as accessory before the fact could not be indicted and tried as though he were a principal; and undoubtedly such language is to be found in the opinion of the late Chief Justice, delivered in Trim’s case. But the question was not involved in that case, nor even there assumed to be, for the judgment there given went distinctly upon the ground that, in the absence of the evidence upon the point, it was to be presumed that an instruction asked by the defendant was properly refused, as merely involving an abstract proposition оf law. In the supplemental opinion delivered in the Campbell case, 40 Id. 141, it is expressly declared that th¿ true rule on the subject was the one laid down in the case of Schwartz, 32 Id. 160, and on referring to that case it will be found that it was determined in favor of thе prisoner, principally on the distinct ground that the indictment had failed to sufficiently designate the person intended to be injured by the commission of the felony charged, though it was in effect said, in the course of the opinion, that an accessory bеfore the fact may properly be indicted either as accessory or as a principal. These are all the cases cited by the prisoner’s counsel in support of the objection relied upon in this case. Other cases, nоt cited, may be found looking in the same direction, but upon being looked into, they will be seen to rest upon one or the other, or all of the cases which we have thus re-examined.

*26We are therefore of opinion that, under the statutes referred to, the prisoner, though shown to have been only principal in the second degree within the ‍‌​​​‌​‌‌‌‌​​‌‌‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌​​​‌‌‌‌​‍common law definition, was properly indicted, tried and punished as a principal in the first degree, in the felony for which the indictment proceeds.

Judgment and order denying a new trial affirmed.