No. 11,615. (59 Pac. 1047.) | Kan. | Feb 10, 1900
The opinion of the court was delivered by This is an appeal from a judgment of-conviction of the offense of fraudulently and feloniously aiding and assisting the mortgagor of personal property in the disposition of it. D. C. Means was indebted to the Missouri, Kansas Texas Commission Company and mortgaged his live stock to secure the indebtedness. He disposed of the mortgaged property with the felonious intent to injure and defraud the mortgagee. The appellant was charged with feloniously aiding and assisting him to make the fraudulent disposition. Upon the trial he was found guilty and sentenced as above stated.
The statutes material to consider read as follows:
*520"That any mortgagor of personal property who shall injure, destroy or conceal any mortgaged property, or shall sell or dispose of such property or any part thereof with intent to defraud the mortgagee, his heirs and assigns, without the written consent of the mortgagee or his or her assigns, shall be deemed guilty of larceny, and on conviction thereof shall be punished. . . ." (Laws 1899, ch.
167 , § 1; Gen. Stat. 1899, § 4074.)
"Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessary to any murder or other felony before the fact, shall upon conviction be adjudged guilty of the offense in the same degree and be punished in the same manner as herein prescribed with respect to the principal in the first degree." (Gen. Stat. 1897, ch.
100 , § 360; Gen. Stat. 1899, § 2241.)
It will be observed that the statute first quoted is not general as to the persons coming within its terms. It is directed at the acts of mortgagors only; hence, it is claimed in behalf of the appellant that, in as much as no one but the mortgagor can commit the wrongful act, therefore, in the view of the law, no one but a mortgagor can aid and assist in its commission, or, rather, as to the act, there can be no accessary before the fact or principal in the second degree. The claim is that no one can be held to have aided or assisted in the doing of an act which he was himself incapable of doing. The proposition is a novel one and no cases sustaining it have been cited to us, nor have we been able, by diligent search,-to find any sustaining it. The decisions, though not numerous, are all to the contrary.
In Boggus v. The State,
In United States v. Bayer, 4 Dill. 407" court="None" date_filed="1876-07-01" href="https://app.midpage.ai/document/united-states-v-bayer-8638257?utm_source=webapp" opinion_id="8638257">4 Dill. 407, Fed. Cas. No. 14,547, the defendant was indicted for conspiring with a bankrupt to enable the latter to commit certain offenses against the bankruptcy laws. The interdicted acts were punishable only when committed by "the person respecting whom bankruptcy proceedings are commenced." The defendant not being such person, and consequently incapable of committing the main offense, it was urged that he was therefore legally incapable of conspiring to commit it. This position was held untenable, in view of the federal statute which provided that "if two or more persons conspire to commit any offense against the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty," etc.
In State v. Sprague,
"Every woman who shall be convicted of concealing the birth of any issue of her body, which, if it were born alive, would be a bastard, so that it may not be known whether it was born dead or alive, or of concealing the death of any infant bastard child born of her body, so that it may not be known whether such child was murdered or not, shall be imprisoned not exceeding ten months, or be fined not exceeding three hundred dollars."
Another statute provided:
"Every person who shall aid, assist, abet, counsel, hire, command, or procure another to commit any crime or offense, shall be proceeded against, as principal or as accessary before the fact, according to the nature of the offense committed; and upon conviction *522 shall suffer the like punishment as the principal offender is subject to by this act."
It was argued that, as none but the mother of the child could be guilty under the statute first quoted, one who aided and assisted her could not be held as principal in the second degree or accessary to her crime. It was ruled otherwise, however, upon the strength of the statute last quoted, the court delivering an opinion reviewing all the cases reported up to that time.
In People v. McKane,
"Any member or clerk of a registry board, who wilfully violates any provision of the election law relative to registration of electors, or wilfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the duties of his office, shall be punishable by imprisonment for not less than two and not more than ten years."
The statute under which defendant was indicted read:
"A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, and, whether present or absent, and a person who directly, or indirectly, counsels, commands, induces or procures another to commit a crime, is a principal."
The defendant's contention was that is was legally impossible for him to commit the offense .charged, inasmuch as he was not an officer of the election board, and therefore could not be guilty of aiding the doing of that which he could not himself perform. The *523 point, however, was ruled against him, the court remarking, among other things:
"The fact that he may, for some reason, be incapable of committing the same offense himself is not material so long as it can be traced to him as the moving cause by instigating others to do what he could not do himself. This was the rule of the common law and it has been applied to offenses like this under special statutes."
In State of Iowa v. Rowe,
"The distinction between an accessary before the fact and a principal is abrogated and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, though not present, must hereafter be indicted, tried, and punished as principals."
The same point was made in behalf of defendant that was made in the cases above cited and that is made in behalf of appellant in this one. It was held to be unavailing. The doctrine of these cases is stated by the text-writers upon the subject. It is that an accessary before the fact need not be of the same class as the principal offender, nor, like him, be capable of committing the main offense. (1 Whart. Cr. L., 10th ed., § 211; 1 A. E. Encycl. of L., 2d ed., 260.)
Attention is called to the fact that the statute of our state making accessaries to felonies punishable as principal offenders was enacted in 1868; that the act of selling or disposing of mortgaged personal property *524
with intent to defraud, etc., was not punishable at that time nor until it was made a misdemeanor by chapter
The statute punishing the fraudulent and felonious disposition of mortgaged personal property does not extend to cases of mortgages to secure debts tainted with usury. The mortgage covering the property disposed of in this case provided that if the mortgagor, in disposing of the live stock covered by it, did not do so through the mortgagee as his agent, he should pay the mortgagee fifty cents per head for each animal he disposed of otherwise than through such agency. The *525 debt secured by the mortgage drew the highest rate of interest allowed bylaw. The appellant contends that the provision for sale through the agency of the mortgagee was a cloak for a contract of usury, and should be so denounced by us as matter of law. We cannot do so.
In Tholen v. Duffy,
The judgment `of the court below is affirmed.
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