71 P. 934 | Ariz. | 1903
The appellant, Bettie Trimble, was charged by indictment with “a felony committed as follows: The said Bettie Trimble, on or about the twenty-fifth day of January, A. D. 1901, and before the finding of this indictment, at the county of Graham, territory of Arizona, did, willfully, un
Section 230 of the Penal Code defines rape to be “an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances,” among which the first is, “where the female is under the age of seventeen years.” The Penal Code further provides :—
“See. 27. All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising or encouraging children under the age of fourteen
“Sec. 845. The distinction between an accessory before the fact and a principal, and principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in thé commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.”
By the ancient common law those persons only were considered principals who committed the overt act, while those who were present, aiding and abetting, were deemed accessories at the fact; and those who, not being present, had advised or encouraged the perpetration of the felony, were deemed accessories before the fact. Later the courts of England' came to hold, as principals, all persons present, aiding and abetting, and these were called “principals of the second degree.” 1 Bussell on Crimes, 26. Such was the common law at the time of its adoption in the states of this country. The departure of our statute in the abolishment of these technical distinctions has effected a material change in the procedure for the conviction of wrongrdoers. If there ever existed any basis in good reason for distinguishing between the moral turpitude of one whose will procures the commission of a crime, and the agent who willfully carries out the malignant purpose, there is now a clear recognition in the law of the principle that all persons whose will has contributed to the doing of a criminal act are equally guilty of that act, by whomsoever perpetrated. All are deemed chief actors, and the statute expressly provides that they “shall hereafter be prosecuted, tried and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.”- Being declared by the law to be principals, they must be indicted as principals, or not at all. Usselton v.
The judgment of the district court will accordingly be reversed, the case ordered dismissed, and the defendant discharged.
Kent, C. J., and Sloan, J., concur.