
    The State of Ohio v. Lingafelter.
    
      Rule of accessories after the fact — Law in Ohio — Forgery—Attempt to cover crime and prevent detection — Do not constitute aiding and abetting — Section 6804, Revised Statutes.
    
    1. The common law rules as to accessories after the fact do not prevail in Ohio.
    2. Where one is indicted and placed on trial for the crime of forgery, and the evidence fails to show that the accused committed the forgery, but tends to prove, that after said offense had been committed by another, such accused person performed acts in the interest of the forger, for the purpose of covering up his forgery and of preventing his detection and punishment, such subsequent acts do not constitute aiding aiid abetting of the forgery as defined in Section 6804, Revised Statutes.
    (No. 10819
    Decided February 11, 1908.)
    Error to the Circuit Court of Coshocton county.
    At the January term of the court of common pleas of Licking county for the year 1906, the grand jury returned an indictment against the defendant in error for forgery. The indictment resulted from an investigation of the affairs of The Homestead Building & Savings Company of Newark, Ohio, an institution incorporated in the year 1887. It was organized with James F. Lingafelter as secretary, who remained in that office until the company went into the hands of a receiver in May, 1904. Mary J. Lingafelter, defendant in error, was the wife of James F., and she and her son Robert C. «Lingafelter, in conjunction with the husband and father, did most of the clerical work of the association for a number of years previous to the year 1902.
    
      The indictment which charged Mary J. with forgery was founded upon a receipt for the payment ' on paid-up stock to which the name of Thomas D. Lloyd had been signed. The case was transferred to Coshocton county on a change of venue. The testimony on the trial under this indictment showed that in the year 1893 Lloyd became a member of the above savings company and subscribed for' a certificate of paid-up stock entitling him to four shares, for which he paid face value, $400. At no time did he draw any money upon the certificate, other than the dividends which accrued semi-annually. However, on the 19th day of March, 1900, on the books of the association in the handwriting of Robert C. Lingafelter, there appeared a receipt for $200 to which Lloyd’s name had been signed by someone, but Lloyd ■ claimed his signature had been forged, and that seemed to be true. On the trial of defendant in error, the above certificate of stock was introduced in evidence, and there was no endorsement thereon of any payment made to Lloyd or anyone, although the rules of the company required such endorsement when partial payment had been made. It further appeared at the trial that the only record book showing partial payments or withdrawals on paid-up stock, which was kept by the company, was an entry made upon the stub of the original stock certificate book. In the Lloyd case this entry appeared in the handwriting of Mrs. Lingafelter. This entry on the stub of the original' certificate was an entry of the alleged payment to Lloyd of the $200. But it was for forging the above mentioned receipt she was indicted and placed on trial. It was not claimed by the state that Mrs. Lingafelter either wrote or signed Lloyd’s name to the receipt, but that the same was done by the son Robert C. Lingafelter, and that some time afterward she made the entry on the stub with knowledge that her son Robert had forged the receipt, for the purpose of aiding her son to escape detection and punishment for the forgery. There was no testimony showing that Mrs. Lingafelter was presént when the receipt was forged by her son Robert.
    In order to hold Mrs. Lingafelter for the forgery because of the entry on the stub, the state asked.the trial court to charge the jury: “If you find from the evidence that the defendant Mary J. Lingafelter, after the commission by Robert C. Lingafelter of the forgery charged in the indictment herein, if you find that such forgery was committed by him, made false entries upon the stub of the certificate of paid-up stock owned by Thomas D. Lloyd, and that such entry was made by the said defendant with knowledge of said forgery on the part of said Robert C. Lingafelter, and was made for the purpose of assisting or relieving said Robert C. Lingafelter in order to hinder his apprehension, trial or punishment for the commission of said forgery, then the court charges you that such act on the part of the defendant would be a violation of Section 6804 of the ■ Revised Statutes, and such act would constitute an aiding and abetting within the meaning of Section 6804 of the Revised Statutes; and in such case it makes no difference that the relationship of parent and child existed between the said defendant and the said Robert C. Lingafelter.”
    This charge was given and Mrs. Lingafelter was convicted. The charge was excepted to. The court sentenced her to imprisonment in the penitentiary. Error was prosecuted in the circuit court, where the above charge was held to be erroneous, and the judgment of the court of common pleas was reversed and cause remanded. The state prosecutes error here to reverse the judgment of the circuit court.
    
      Mr. J. R. F itz gibbon and Mr. W. R. Pomerene, for plaintiff in error.
    
      Mr. F. V. Owen; Messrs. Smythe & Smythe and Mr. John D. Jones, for defendant in error.
   By the Court.

The record in this case is very imperfect, and that, too, without any visible excuse. From the material on hand, we learn that at or about the time charged in the indictment, Robert C. Lingafelter forged the name of Thomas D. Lloyd to a receipt for two hundred dollars as so much withdrawn from The Homestead Building & Savings Company, in which he held a certificate of paid-up stock in the sum of four hundred dollars. In fact the money had not been withdrawn by Lloyd or anyone for him. The accused Mary J. Lingafelter, mother of Robert, during several years, had done some of the clerical work of the institution, and on her trial for forgery of the above receipt, the evidence tended to prove that some time after the forgery by Robert C. Lingafelter, the son, Mrs. Lingafelter, knowing that he had committed the forgery, made a certain entry or entries on the stub of said certificate for the purpose of covering up evidence of his crime, and to hinder and prevent his detection and punishment. It is not claimed that she was present when the forgery was committed or that she had advised or aided in its commission.

Her acts and conduct in regard to making the entry or entries on the stub, after the forgery by the son, are relied on by the state to hold her conviction, and hence the charge of the trial court, or one similar in essence, became necessary.

It must be remembered that Mrs. Lingafelter was indicted and tried for forging the receipt, but the evidence showed nothing more on her part than above stated. The charge to the jury selects for its warrant Section 6804, Revised Statutes, which is:

“Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.” And the charge recites in substance the facts we have stated, and the jury was told, if they so found the facts as to Mrs. Lingafelter, she violated the above section of the statute and such acts would constitute aiding and abetting within the meaning of said section.

If there is one word in the statute cited that warrants the charge of the court, we are unable to find it. We have heretofore understood, that aiding or abetting must either precede or accompany the commission of the offense, and we cannot now see how the commission of a crime can be aided and abetted by the act or conduct of another party after the offense has been fully completed.

• However, the trial court so construed the statute that, not only what may be done before the principal offense is committed, but what may be done afterwards by one not the principal offender, is within the definition of the statute. Or, in other words, when the general assembly was declaring the acts of one before the offense which aided and abetted its commission, to be a crime, it intended to include acts done or performed after the principal offense. That is equivalent to saying that “before” may mean “after,” and if that is not precisely correct, it may mean both. To sustain the charge, something besides the statute must be drawn upon, and a portion of the common law of crimes — the law of accessories after the fact — is mixed with the statute and from the curious compound so produced, the conduct of the accused was declared to be in violation of Section 6804, so compounded with the common law.

It often has been decided by this court that we have no common law crimes in Ohio; that the general assembly has taken the responsibility of defining what acts or omissions are crimes and offenses in this state, and of prescribing suitable penalties in case of guilt. This doctrine has been repeatedly announced by this court, and the latest distinct pronouncement on the subject is found in Johnson v. State, 66 Ohio St., 59. There, former decisions are reviewed and commented upon as being in harmony on the proposition that we have no common law crimes in Ohio. Therefore, we have in law no accessories after the fact. Whenever and' wherever the legislature has deemed it necessary to penalize the acts of one which are done or performed after the commission of the principal offense, it has enacted statutes to meet the case, and such acts are made a substantive offense as distinguished from the relation of accessory after the fact as recognized at common law, as in cases for receiving stolen goods and the like.

Further discussion is not necessary on so plain a question. The charge of the trial court was and is erroneous, and therefore the judgment of reversal rendered by the circuit court should be and it is affirmed.

Judgment affirmed.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.  