People v. Bliven

Section 294 of the Penal Code provides as follows : “Abortion defined. A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child with which she is pregnant, either (1.) Prescribes, supplies, or administers' to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug or substance; or (2.) Uses or causes to be used any instruments or other means, is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year.”

Under that section the defendant was indicted by the grand jury of the county of Kings for having feloniously, etc., used a certain instrument upon the prosecutrix with intent thereby feloniously and unlawfully to procure her miscarriage, the same not being then and there necessary to preserve her life or that of the child with which she was pregnant.

The question is now fairly presented whether upon an indictment which alleges the doing of an act by the defendant constituting the crime, he can be convicted upon proof that though absent at the time of the actual" commission of the crime he nevertheless aided in, advised and procured its commission.

Before the adoption of the Code, and in cases of felony, there would have been no doubt that a conviction could not be had upon an indictment such as this, where the proof was the same as in this case. It is claimed, however, that section 29 of the Penal Code works a change in "the law upon this subject. That section is as follows : “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and 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.”

It is now argued that by reason of' this section the rule of law has been changed, and that upon an indictment alleging that the defendant committed the crime named in the indictment, he may be convicted upon proof that, though absent, he advised and procured its commission. The purpose and effect of the section are to abolish the distinction which here

As late as the case of Regina v. Greenwood (9 Eng. L. and Eq. 535), which was a case where the prisoner was indicted for uttering counterfeit coin, the crime being a misdemeanor, •

Another case is that of Regina v. Clayton (47 Eng. C. L. R. 128). The indictment charged the prisoners with' an attempt to set fire to a certain malt-house, and they were jointly charged in the indictment with having made such attempt. The proof showed that Mooney was not present when the other prisoner lighted the fire, but it tended also to show that, though absent, she knew beforehand that the fire was to take place. The question was raised on the part of the prisoner Mooney-that she could not be convicted under the indictment as it charged her with the actual attempt to burn the malt-house, while the proof showed that she was absent, although privy to the act. The objection was overruled, and it was stated by the learned judge, in summing up, that in misdemeanors and in treason all who take part in the crime are principals, and that the prisoner Mooney might be convicted finder the indictment, which alleged that she herself attempted the crime if, though absent, the jury believed that she counseled and encouraged the other prisoner to set the fire.

The same rule has been held to exist in this state. In Ward v. People ( 6 Hill, 144 ), the indictment charged the prisoner with having stolen twenty-five pounds of butter. On the trial he gave evidence tending to prove that he did not himself steal the butter, but sent another person to steal it, and that they

In England by the statute 11 and 12 Victoria (Chap 46, § 1), for the purpose, as is stated in the preamble, of relaxing the technical strictness of criminal proceedings and to insure the punishment of the guilty without depriving the accused of any just means of defense, it was enacted that “ if any person shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, such person may be indicted, tried, convicted and punished in all respects as if he were a principal felon.”

The same provision is reiterated in 24 and 25 Victoria (Chap. 94, § 1). It would seem that the provisions of these statutes established the same rule in cases of felony as in cases of treason and misdemeanor, and that an indictment against a person who before the statute would have been regarded as an accessory before the fact in a case of felony would now charge the crime against him in precisely the same manner as if he were a principal felon. And a person charged with the commission of a felony would under those statutes be convicted on proof showing him guilty as an accessory before the fact. It has, indeed, been so decided.

In the case of Regina v. Manning (2 Car. & Kir. 892, 904; S. C., 61 Eng. Com. Law, same pages), it appeared that two

Under these circumstances the question arises whether it was not meant by the passage of section 29 of the Penal Code to place a person who in cases of felony would otherwise have been guilty as an accessory before the fact under the same rule as had heretofore obtained in cases of treason and misdemeanor. The general rule of law is as stated by Mr. Bishop, that what one does through another’s agency is to be regarded as done by him. (1 Bishop’s Or. L. §§ 656., 613, 682.)

If the case were a civil one, a pleading which alleged the ' doing of an act by the defendant would be sustained upon proof of the doing of the act by his agent, or by anyone whom he advised or requested to do it, and it is difficult to see why, under an indictment charging the defendant with the commission of a crime, proof showing its commission by one whom

We .think the case of the People v. Dumar ( 106 N. Y. 502 ) has no application. The indictment in that case charged the defendant with the crime of grand larceny in unlawfully stealing and carrying away the property described. The proof was that the defendant obtained possession of the property from the owner by sale upon credit induced by false and fraudulent representations. We held that there was a variance between the proof and the indictment, and that the defendant was left uninformed of the real act committed by him. There was no question in that case in regard to the act charged having been done by a third person in the absence of the defendant, but by his act and procurement. The crime charged was a totally different one from that which the facts proved, although both were grand larceny. The indictment, however, charged one set of facts as constituting grand larceny, and the proof was of a totally different set of facts, which by the Code also constituted grand larceny. The difficulty was that the crime as charged was not proved, and the crime as proved was not charged.

In Dempsey v. State of Illinois ( 47 Ill. 323 ), the same question again came before that court, the prisoner having been indicted for murder and the proof showing that he was guilty as accessory before the fact. The court stated: “ It is contended that in such a prosecution the prisoner should have been indicted as an accessory before the fact, and, having failed to do so, the people should be precluded from establishing his guilt in that mode. Our statute declares an accessory before the fact to be a person who stands by and aids, abets or assists, or who not being present, aiding, abetting or assisting, hath adAÚsed and encouraged the perpetration of a crime; and that a person thus aiding, abetting or assisting, and advising or encouraging, shall be deemed a principal and punished accordingly. The statute having declared such persons principals, no reason is perceived why they may not be indicted as such.”

The court then referred to the case of Baxter v. People, (supra), and added: “ These cases are decisive of the question, nor do we see any sufficient reason to overrule those cases.

The statute of Michigan abrogates the distinction between an accessory before the fact and a principal, and all who would be accessories before the fact at common law are to be indicted, tried and punished as principals. Another statute provided that if the father or mother of any child, or any other person to whom it was confided, exposed it with intent to abandon, such person was to be punished as therein provided. The prisoner, who was neither the father, mother or person to whom the child had been confided, was indicted as a principal under the statute. The proof only showed that he had counseled and aided and abetted the act of abandonment, but was not present when it was committed. The court held that where the prisoner could not be guilty of the substantive or main offense whose commission he aided, that is where it was a legal impossibility for him to commit it, that in such case the aiding and abetting was the principal offense, and he must be indicted as having committed that specific-offense, and the indictment must charge the acts of aiding and abetting. This is the principle decided in Shannon v. People ( 5 Mich. 71 .) It does not touch the point in this case.

In Smith v. State ( 37 Ark. 274 ), the question is briefly discussed and decided in accordance with the defendant’s claim here, chiefly on the authority of the two cases in California (People v. Trim, 39 Cal. 75 ; People v. Campbell, 40 id. 129 ); but the authority of. such cases is overturned by the later case cited in the same state of People v. Outeveras ( 48 Cal. 19 ).

The statute of Arkansas is somewhat peculiar. An accessory before the fact is defined by the Revised Statutes of that state (R. S. 44, p. 248), and it is declared that “ he who thus aids, assists, abets, advises or encourages, shall be declared in law a principal and punished accordingly.” In Williams v. State

We are inclined to agree with the English rule and with the reasoning of the learned judges of California in the latest cited case, and with those of Illinois. The court in Michigan does not hold any contrary doctrine. When we remember that the distinction taken between an. accessory before the fact and a principal does not exist either in cases of treason or misdemeanor, and that in England where the distinction had its origin, cases of misdemeanor were sometimes of very grave character, involving imprisonment for years, and that the reason for the existence of the distinction in cases of felony is neither very clear nor very satisfactory, as given by the older writers, Blackstone and Coke, we cannot fail to be impressed with the view that the legislature of this state, in abolishing the distinction and in making an accessory before the fact a principal in cases of felony as well as in cases of misdemeanor, meant to make the law in regard to the statement of the offense the same in all cases; and that what would be a proper indictment in a case of ordinary misdemeanor, as held by our courts for a long number of years, would be a proper one in a case of felony.

Where the statute in defining what constitutes a principal in the commission of a crime, includes one who counsels its commission, although absent at that time, we do not lay any stress on the presence or absence of a provision that he shall be indicted or punished as such. If he is made a principal, we think it follows that it would be proper to so indict him, unless, indeed, in such a case as the one in Michigan, where the only offense that the defendant could commit was the substantive and separate one of advising the commission of the principal offense.

The kind of pleading of which this indictment is an example, receives the unqualified approval of Mr. Bishop, whose ability as a writer on the subject of criminal law is admitted.

The only objection that could be urged against an indictment in this form is the possibility of misleading the defendant as to the nature or character of the act of which he is accused. It was that objection that seemed so weighty in the eyes of that most learned and able judge, Chief Justice Mabshall, as we learn from his views expressed upon that point in the trial of Aaron Burr for treason, although at the same time he admitted the existence of the rule. (4 Cranch,„469,497.)

But upon reflection we think the objection is more fanciful than real, and if it be understood that upon an indictment of this nature a man may be convicted upon proof, not only of his doing the act with his own hand, but upon proof that he advised and procured another to do it, and thus did it himself, we think no man will suffer any real inconvenience or any injustice from such a rule.

The general policy throughout this country and England runs in favor of more liberal views, at the present time, in regard to the treatment of those technicalities which formerly existed as obstructions in the path of the enforcement of the criminal law. That policy is shown by the passage of such acts as have been citéd as well from England as from other states in the Union. It was stated in the English statutes, which made the alteration already referred to, that it was made “ to insure the punishment of the guilty without depriving the accused of any just means of defense,” and we think that the abolition of all distinction between principals in the first and second degree and accessories before the fact, does tend in that direction.

By holding this indictment to be insufficient to admit proof

We think that no injustice has been done ; that the indictment was sufficient to permit the proof given, and that the defendant was legally convicted of the crime charged.

The judgment should be affirmed.

All concur.

Judgment affirmed.