State v. Bogue

Jul 15, 1893
Reporters:
Before:
Allest

The opinion of the court was delivered by

Allest, J.:

*85declarations of accessory. *84We think the refusal of the court to permit Doctor Kidd to testify as a witness for the defendant was manifestly erroneous. (Noland v. The State, 19 Ohio, 131.) The distinction sought to be drawn between cases where defendants jointly indicted are jointly tried and those where they are separately tried has no foundation in reason, nor do we think that it has any sanction in law. We also think §210 of the criminal code authorizes the granting of new trials for like causes as in civil cases, and that § 275 in no way prejudices the defendant’s rights in that particular. But the rul*85ing of the court in this respect, though most prejudicial to the substantial rights of the defendant, is not properly before us for review, because not included in the only motion for a new trial which was filed within the time required by law. The admission of the declarations of Doctor Kidd before the coroner’s iury, in the absence of the J ^ t defendant, was error. Whatever might be said in favor of the admissibilty of such testimony under the common-law practice, where one is indicted as principal and another as accessory, in this state, where accessories before the fact are charged and tried as principals, and where defendants are permitted to testify in their own behalf, we think the reason, if any there might be, for the admission of such testimony, fails. We, of course, are not here considering declarations of co-conspirators, or of persons engaged in a common criminal enterprise before or during the perpetration of their crime, but declarations of one of two defendants, jointly charged as principals, made long after the offense, if any, was consummated. We are clearly of the opinion that the testimony was inadmissible. (1 Whar. Crim. Law, 8th ed., § 237; Ogden v. The State, 12 Wis. 532.)

*86s’ competent“4-witness. *85Was it so material as to require a reversal? The theory of the prosecution was that the defendant had seduced the deceased girl, and that she was pregnant by him; that he employed Kidd, “who was a doctor, to procure an abortion; that Kidd used instruments and administered drugs, and thereby did produce an abortion, and did also cause the death of Pauline Sweitzer. Under this theory, which was followed throughout the trial and in the instructions of the court, the guilt of Bogue was necessarily dependent on that of Kidd. If the theory of the prosecution was true, Doctor Kidd was guilty of procuring an abortion, not of doctoring a girl who had inflammation of the stomach. The information charged that he administered aloine, ergot, ergotine, sulphate of morphia, subnitrate of bismuth, and other noxious and abortifa-cient drugs. The chemist who analyzed the stomach, etc., of the deceased girl, testified to the discovery of aloine, ergo-*86tine, and subnitrate of bismuth. If - the theory of the prosecution was true, and the result of the chemist’s analysis is correct, Doctor Kidd’s statements before the coroner’s jury were false, and the jury would naturally, almost necessarily, have inferred that Doctor Kidd made false statements before the coroner’s jury for the purpose of misleading them and concealing his crime. It cannot be said that this testimony was unimportant. It appears to us that it might have been, and probably was, highly prejudicial to the defendant. If the jury was convinced that Doctor Kidd made these statements, and that they were false, they would much more readily attribute guilt to him than if no such statements had been made. These and other statements of Doctor Kidd, made after the death of Pauline Sweitzer, were testified to by several witnesses. We think this error for which a new trial must be awarded, and its gravity is much increased by the refusal of the court to permit Doctor Kidd 4 . * _ , to testify as a witness. If Doctor Kidd was guilty, there is abundant evidence in the record to connect the defendant with the crime.

It is contended that the subsequent acquittal of Doctor Kidd compels the vacation of the judgment against the defendant, and his discharge from further prosecution. It may be conceded that, at common law, the acquittal of the principal acquitted the accessory also, and that the conviction of the principal must precede or accompany that of one charged as an accessory. (1 Wfaar., §237; 1 Bish. New Crim. Law, §667.) Section 115 of the criminal code provides: “Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were principal.” The evident purpose of the legislature of our own and other states where similar statutes have been enacted was, to do away with those subtle distinctions of the common law between principals in the first and second degree and accessories before the fact, and to permit the trial of participants in the crime independently of each other, so that each should suffer punishment-for his own guilt, *87without being dependent on the result of the prosecutions against others. Of course, if the crime be committed through the instrumentality of another, the acts of such instrument, essential to establish the guilt of the person on trial, must be shown. The statute does not in any manner enlarge or diminish the essential elements of criminality. It merely does away with a somewhat arbitrary nomenclature which has come down from English jurisprudence, and has been found to be a serious stumbling-block in the administration of criminal justice.

We think a guilty accessory may be punished, even though the principal escape. As was said in The State v. Mosley, 31 Kas. 355, a record showing the conviction of the principal is prima facie evidence of that fact, but is not conclusive of it on the trial of the accessory. We think our view of the law on this branch of the case is fully sustained by the decisions of those states having statutory provisions similar to our own. (Noland v. The State, supra; Hanoff v. The State, 37 Ohio St. 178; Goins v. The State, 46 id. 457; The State v. Phillips, 24 Mo. 475; The State v. Ross, 29 id. 32.) The provision of the Indiana statute quoted in the case of McCarty v. The State, 44 Ind. 214, is different from ours.

s’ ofcoaefenáttal We have said so much with reference to a prosecution of the defendant as though he were but an accessory. He stands charged, however, as principal, and being so charged, of course, the mere fact of the acquittal of his codefendant could not, ipso facto, entitle him to a discharge.

Judgment is reversed and a new trial awarded.

All the Justices concurring.