18 S.C. 175 | S.C. | 1882
The opinion of the court was delivered by
This was an indictment for murder, in which Isaac Putman was charged with shooting Giles Guess, and the other defendants, Lilly Putman and Silas Put-
The defendants, Silas Putman and Lilly Putman, moved in arrest of judgment and to set aside the verdict as to them, and failing, then for a new trial upon the following ground: “Because the jury haying found a verdict of manslaughter as to Isaac Putman, who did the shooting, sudden heat and passion, the elements of manslaughter, could not be attributed to Lilly and Silas. Therefore the jury erred in finding them guilty in the same degree as Isaac.” The judge refused all the motions, and Silas and Lilly appealed to this court upon the ground that his Honor erred in not arresting the judgment.
This was an indictment for murder against three persons, alleging that one of them did the act, and that the other two were present aiding and abetting therein. It did not charge one as principal and the others as accessories before the fact, but all as principals; as it is sometimes expressed, one in the first and the others in the second degree. There can be no doubt that with reference to the crime of murder the indictment was correctly framed and in exact 'accordance with established forms. State v. Rabon, 4 Rich. 264.
In that case three persons were indicted for murder. The indictment alleged that the fatal wound was given by Abram Babón, the younger, and that Abram Babón, the elder, and Duke Babón were present aiding and abetting in the felony. All the defendants were found guilty, and in delivering the judgment of the appeal court, Judge Evans said: “The defendants might have been charged as principals in the. first degree. In Arch. C. P. 396, it is said that the pleader may charge the principal in the second degree as a principal in the first degree (for proof that he was present aiding and abetting will, in such case, maintain an indictment charging him with having actually committed the
But conceding that the indictment is according to the most approved form in reference to the crime of murder charged, it is suggested that, the jury having found that no murder was committed — only manslaughter — the condition of things is entirely changed, and the indictment must be read as if it charged only the crime of manslaughter, and that with reference to that crime, which'is in its nature sudden and unpremeditated, there cannot be a principal in the second degree, and therefore the allegation in the indictment as to the parties aiding and abetting, should be ignored or stricken out as inappropriate, and the judgment arrested as to Silas and Lilly. This is plausible, but it seems to rest on the view that the charge of being present, aiding and abetting, is equivalent to that of being accessory before the fact.
It is conceded that there can be no accessories before the fact in manslaughter, but the authorities do not sustain the view that being present, aiding and abetting, is identical with an accessory before the fact, which consists in counseling, advising or procuring the act to be done, and may be a great while before. The charge of being present, aiding and abetting, is but one of the forms of charging the parties as principals.' “ The distinction of principal in the first and second degree was a mere distinction in fact, and is no longer recognized.” State v. Fley and Rochelle,
Upon an indictment for murder the jury may find a verdict for manslaughter. Indeed, this is so well established that an indictment for manslaughter, as such, is rarely, if ever, given out. This being the universal practice, it would seem strange, if the view suggested is sound, that the question made here has never arisen before. The court has not been referred to any case upon the point, and in the short search which the press of business has enabled us to make we have not been able to find one. If a verdict for manslaughter can be rendered upon an indictment for murder against the perpetrator of the deed, why may not the same verdict be rendered against those who are charged as principals in aiding and abetting the crime. This must be allowable, unless the character of the crime of manslaughter is such as necessarily to exclude the possibility of participation or co-operation on the part of others present at the act.
It is true that the characteristic element of the crime of manslaughter is that, although a homicide, it is committed in sudden heat and passion and without malice aforethought. It is defined to be “the unlawful killing of a human being upon sudden heat and passion arising from reasonable provocation.” But, as we understand it, this does not necessarily limit the offense to the persons who actually did the deed when several were present and engaged in a common quarrel. The provocation given may extend to others as well as to the principal actor. Although the crime is said to be “sudden and unpremeditated,” it need not be on the instant the provocation is received. In its regard for the weakness of human nature the law allows a certain time — rea
The particular facts of this case are not before us. None of the circumstances of the killing, are in the brief. All we know is from the allegations of the indictment that Isaac was charged with doing the act, that Lilly and Silas aided and abetted therein, and that all were found guilty of manslaughter. The jury found that Silas and Lilly co-operated with Isaac in committing the homicide, and we cannot say that such finding was so impossible or unauthorized as to justify us in arresting the judgment as to them.
The judgment of this court is that the judgment of the Circuit Court be affirmed.