37 Del. 484 | Del. | 1936
delivering the opinion of the Court:
In order to clearly determine the purpose and effect of the Statute it may not be improper to briefly consider the condition of the law prior to its passage.
Accessories included persons who, in some manner, were connected with crime, either before or after its perpetration, but were not actually present at the time the crime was committed. It will be seen, then, that the offense of being an accessory was derivative and dependent upon the existence of a principal.
It seems to be entirely clear that distinctions between principals and accessories existed only in cases of felony and did not exist in cases of treason or in cases of misdemeanor, but in these latter offenses all participants were considered as principals and could be prosecuted as such. The reasons for the distinctions between treasons and mis
The pertinent common law sustained no material change by virtue of our Colonial Statutes. In 1719 the penalty of death was prescribed for accessories where the principal was convicted of mayhem or other capital crime; provision was also made for the punishment of accessories receiving stolen goods and for those cases where the accessory lived in a different county from the principal offender (Volume 1, Laws of Delaware, 68-74). These are, substantially, all of the statutory provisions prior to the original enactment of the Statute we are now considering.
In 1824 a Revised Code for Delaware was in course of preparation. Hon. Willard Hall, then United States District Judge, was engaged to prepare a codification of the criminal laws for inclusion in this new revision. This was done, and Judge Hall reported the new Criminal Code in 1826 (House Journal, Page 113). This criminal codification was adopted on February 8, 1826, and is found in 6 Delaware Laws, Pages 708-747.
Section 1 of this Act consists of a long statement of offenses and their punishment. Section 2 provides, inter alla, “All offenses indictable at common law and not provided for by this or some other Act of the General Assembly, shall be deemed misdemeanors” (See Section 4720, Revised Code of 1915). Section 3 of the Act of 1826 included, substantially, the exact words now- found as Section 4806 of our present Code, which we are now considering.
One purpose of Section 3 of the Act of 1826 (Section
There is no intent evidenced in the Statute to make the accessory a principal. Indeed, it would have been curious if such had been the case. While modern criminal legislation has, in many jurisdictions, made an accessory a principal and authorized prosecution as such, yet this desirable statutory change did not manifest itself until long after 1826. There is no evidence that Delaware originated the advanced thought in these prosecutions or that its Statute of 1826 was intended to have such effect. The change was not made in England until 1848 (11 and 12 Victoria, c. 46) or in Pennsylvania until 1860, when that state adopted the English Act. While we have not examined the Statutes of American jurisdictions to ascertain the date of their first enactment, yet the Statutes of upwards of thirty such jurisdictions have been reviewed. These all, in varying language, provide that the accessory shall be considered as a
In addition to the saving of accessories from the classification as misdemeanors, heretofore mentioned, another purpose is plainly indicated. The Statute includes under the general term “accomplice” all who “abet, procure, command or counsel” another to commit a crime or misdemeanor. This term accomplice, then, includes those who would have been, at common law, either principals in the second degree or accessories before the fact. When the Statute, by its concluding paragraph, provided that the accomplice might be prosecuted without the prior prosecution and conviction of the principal, it must have contemplated the very case of the accessory before the fact, for the principal in the second degree, prior to the enactment of this Statute, could have been so prosecuted and, indeed, that was the origin of the classification of second degree principal. If, therefore, under the act, an accessory (now an accomplice) was to be considered as a principal, then the concluding paragraph was entirely superfluous and of no effect whatever. If, on the contrary, the accessory kept his known and existing status as an accessory distinct from the status of a principal, then the concluding paragraph filled a great need in the enforcement of criminal law, for under it he could now be prosecuted prior to the prosecution of the principal, which could not be done under the common law or prior to the passage of the Statute.
Our conclusion is that the Statute did not make, nor was it intended to make, the accessory a principal. Our con
The Attorney-General, however, contends that in Delaware it has been an established practice to indict an accessory before the fact as a principal and that therefore the Statute has received that construction. It is conceded that in no known case has the question been raised or passed upon. Without conceding that a practice, continued without objection, could have the effect of imposing a fixed construction upon criminal statute, we desire briefly to consider to what extent, as shown by the reported cases, the suggested practice had existed. State v. Brinte and Jiner, 4 Penn. 551, 58 A. 258; State v. Brown and Sharp, 2 Boyce (25 Del.) 405, 80 A. 146; and State v. Williams, 3 Boyce (26 Del.) 102, 80 A. 1004, were all cases involving felonies, So little was the alleged practice regarded as being embedded in the law of the State that, in the cited eases, parties who, at common law, would have been regarded as principals in the second degree and so indictable as principals, were nevertheless specifically charged as having been present, aiding and abetting in the commision of the crime. In misdemeanor cases, it will be recalled, no distinction was made at common law between principals and accessories but all were indictable as principals. State v. McCallister and Little, 7 Penn. 301, 76 A. 226; Walsh
Because the defendant in the present case was indicted as a principal and the evidence plainly shows that he was not present at the time of the commission of the offense, we think that, under the existing statutory provision, the conviction cannot stand, and the judgment of the court below is reversed.