13 Ga. App. 158 | Ga. Ct. App. | 1913
Lead Opinion
(After making the foregoing statement.) The indictment was in the language of the statute; and it is declared in the Penal Code (1910), § 954, that “every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this
In the case of Hall v. State, 133 Ga. 177, 178 (65 S. E. 401), the indictment alleged that the defendant committed the offense (assault with intent to murder) “by stabbing the said Henry Howell with a certain knife and with other sharp instruments to the grand jury unknown.” The defendant demurred to the allegation that the stabbing was done “with other sharp instruments to the grand jury unknown,” because it was too general, to put the accused upon proper notice as to what instrument was alleged to have been used by him; also because it was too indefinite in that the weapon alleged to have been used was not particularly set forth. It was held that there was no merit in the demurrer. See, also, Hicks v. State, 105 Ga. 627 (31 S. E. 579). In Malone v. State, 77 Ga. 767, Chief Justice Jackson, speaking for the court in passing upon the sufficiency of the indictment, said: “ The indictment is good. It is charged that with the knife, a weapon likely to produce death, the stabbing was done with intent to kill and murder.” In other words, the language was sufficiently specific to show that the knife was used to stab the decedent. It was immaterial in what part of his person the wound was inflicted. The allegations ih the indictment in the present case axe almost identical with those in the case of Commonwealth v. Snow, 116 Mass. 47, where the defendant, was 'convicted of producing a criminal abortion. The following part of the indictment was held to be good: “a certain instrument, the name of which is to the jurors unknown.” “In an indictment for assault with intent to murder, at common law, or under a statute which does not specify the instrument, it has been held unnecessary to state the instrument or the means made use of by the assailant to effectuate the murderous intent.” 1 Wharton’s
Now, as to the accessory before the fact: .It is distinctly alleged, in the language of the statute, that, being absent at the time of the commission of the crime of assault with intent to murder, the accused, “did then and there unlawfully, feloniously, and wilfully procure, counsel, and command” the principal perpetrator to commit the crime as set out in the indictment. The objection to this language is that it does not specifically state where, when, and how the accessory before the fact named procured, counseled, or commanded the principal to commit the crime. These words must be taken in their popular sense; and their use sufficiently informs
On the evidence the opinion of the majority of the court, prepared by Judge Pottle, is as follows: “Section 45 of the Penal Code contains, substantially, the common-law definition of an accessory before the fact. It says: ‘An accessory before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime.’ The accused was indicted as an accessory before the fact, and it is well settled that one so indicted can not be convicted upon evidence which shows him to have been a principal, either in the first or the second degree. The question, therefore, upon the merits, is whether the accused procured, counseled, or commanded Dr. Whitehead to commit the abortion upon the female named in the indictment. It may be conceded that if he had advised another to procure Dr. Whitehead to commit the crime, he would have been as guilty as
I do not concur in the opinion of my associates that the evidence was not sufficiently conclusive to support the charge against the accused of being an accessory before the fact. The distinctions between principals in the first and second degree and accessories before the fact are fanciful rather than substantial. All are deemed equally guilty and are punished alike. And it has been held that on an indictment against one as principal in the first degree, if the evidence warrants it, a verdict may be had against him as either a principal in the second degree or an accessory before the fact. In some of the States the common law has been changed by statute so as to abolish these distinctions, and accessories before the fact are considered as principals. 1 Wharton’s Crim. Law (11th ed.), 338, note 6. Especially should this distinction be ignored when the criminal act is the result of a conspiracy or confederacy; for every
The majority of the court think that the evidence does not show such participation in the common criminal design by the accused as to warrant his conviction. In coming to this conclusion they construe the general words of the definition, “procure, counsel, and command” the commission of the criminal act, necessary to make one an accessory before the fact, as meaning to “incite,” “encourage,” “cause.” The words “counsel and command” have no application to the facts, but in my opinion the word “procure,” used in the definition, is broad enough to embrace the acts and conduct of the accused. I am strengthened in this view by the definition in section 44 of the Penal Code: “An accessory is one who is not the chief actor in the offense, nor present at its performance, but in' some way concerned therein, either before or after the act committed.” This definition is certainly broad enough to include the acts and conduct of the accused, if its meaning is not restricted by the section following which defines an accessory before the fact as “one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime.” The two sections should be construed together; and, so construed,; one who aids and abets the commission of a crime by knowingly con
The two cases relied upon by Judge Pottle are distinguishable on the facts from the two cases above cited as well as from the instant ease. In R. v. Fretwell, L. & C. 161, although the accused gave the drug to the pregnant woman at her request after her threat to take it to cause a miscarriage, the court held that he was hot guilty of being an accessory, because "he was unwilling that she should use it, and did not administer it to her nor cause her to take it.” In R. v. Taylor, 2 Cr. Cas. Res. 147, the court held that "A stakeholder who takes no part in the arrangements for a prize-fight)-and does nothing more than hold the stakes 'and pay
Judgment reversed.
Concurrence Opinion
concurring specially. I agree to the reversal of the judgment of the lower court, upon the ground that the verdict was contrary to the evidence; but I am further of the opinion that the indictment was demurrable. One charged as an accessory has, in common with all who°are accused of the crime, the right to be definitely informed as to the precise nature of the transaction as to which he is called on to defend.