State v. Poynier

DissentxNG Opinion:' Todd, J. The common law recognizes two kinds of principals to a crime — principals in the first and second degree. A principal in the first degree is the actual perpetrator of the deed, either in person or through an innocent medium or irresponsible agent. Wharton Cr. Law, (4th Ed.) sec. 112; 1 Hale, 233, 615; Bishop Cr. Law, (5th Ed.) secs. 648, 651; 1 Arch Cr. Pr. and PI. (7th Ed.) 58. Principals in the second degree are those who are present, aiding and abetting at the commission of the fact. 1 Hale, 438, 439; Foster, 349, 350; Wharton Cr. Law, (4th Ed.) 116; Bishop, (5th Ed.) sec. 649. This presence is either actual or constructive. TIlus it is a constructive presence if a party watches for his companions, the actual perpetrators, to prevent surprise or favor their escape, or give assistance and is near enough to afford it, if required. Wharton (4th ed.), seec. 116, 124; Hale, 438 ; 1 Arch. pp. 58, 59; Bishop, sec. 653. If a person is present aiding and abetting in some act making part of the offense, although absent when the crime is completed by his confederates, he is a principal with respect to the whole of it. 1 Arch. Pr. and PI. pp. 61, 66; Reg. vs. Jordan O’Sullivan, 7 C. and P. 432. These leading authorities shed all necessary light on the question, as to who are to be held as principals in a crime whether in the first or second, degree. The doctrine upheld by these authorities still governs in this State, except that the distinction or difference between principals in the first or second degree can scarce be said to be any longer recognized; In the instant case the trial judge, after charging the jury in exact accord with the principles adverted to above, farther charged, substantially, that although a party may be absent from the place where the crime is committed and such a distance therefrom as not be able to render any assistance if required, yet if his absence is for the purpose of facilitating the commission of the offense he is a principal and is constructively present aiding and abetting. The question recurs: does the proposition conveyed in this.charge fall within* or is it covered by the doctrine established by the authorities cited, or is it justified and sanctioned by any known rule or principle of law? *577 After an exhaustive examination of all authorities on the subject, and the minutest consideration, 1 am constrained to answer this question in the negative. So far from being supported by authority or precedent, I think it opposed to the controlling principles referred to and really inconsistent with the first part of the charge given to the jury, and the law therein so clearly enunciated. , If it should prevail, it would effectually, in my opinion, destroy the distinction so firmly established between principals and accessories before the.fact. To constitute a party a principal in the crime, in any degree, he must be a co-operator therein at the time of its commission. Thus it is laid down by Archibold, that going towards or in the direction of a place where a larceny is committed for the purpose of assisting in carrying oft the property and assisting accordingly, but at such distance as not to be able to assist in the commission of the fact, at the time of the felonious taking and carrying away, did not make the party a principal in the larceny. Archibold Or. PL and Pr., p. 66. And in a case presenting a strong analogy to the instant one, where an employee in a house in pursuance of an a/rrcmgement made with a confederate, admitted this confederate into the house where he remained till the next day, when he stole the money from a cash-box in the house, during the absence of the employee therefrom, it was held that the latter was not a principal in the crime, but an accessory before the fact. Eeg vs. Jackwill and Perkins, 1 Carrington and Marshman, p. 215. Eeference is made in the brief of the Attorney General to two cases as supporting the principle announced in the charge we are considering: those are, Rey vs. Flatman, 42 L. T. ( Eng.) 159 and Scales vs. The State, 4 Tex. App. 361. The first of those cases turned on the effect to be ascribed to the delivery by the wife of the husband’s goods to an adulterer and did not involve the general principles governing the point or question under review. And the other case was decided under a special statute of the State of Texas, which changed materially the common law on the subject of principals and accessories. See Peck Digest, art. 1809, et seq. Penal Code. art. 214, et req.. I am thus brought to the conclusion that there was an error in the charge complained of and of gravity sufficient to vitiate the verdict of the jury and the sentence based thereon. I, therefore, dissent from the opinion of the majority.