
    The People of the State of New York, Resp’t, v. Courtland H. Bliven, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Criminal law—Indictment—Who to be tried as principals—Penal Code, § 29.
    Upon an indictment which alleges the doing of an act by the defendant constituting the crime, he can, under Penal Code, § 29, be convicted upon that though absent at the time of the actual commission of the crime, he, nevertheless, aided in, advised and procured its commission.
    2. Same—Distinction between a principal and an accessory before , THE PACT ABOLISHED.
    Penal Code, § 29, abolishes the distinction, which existed before its passage in cases of felony, between a principal and an accessory before the fact, the principal being present and either committing the act himself or aiding, in.its .commission, and. the accessory before the fact being absent but counseling and procuring its commission.
    S. Same—Abortion—Variance.
    The act constituting the crime was the insertion of an instrument in the body of the prosecutrix and thereby procuring an abortion. The act was plainly charged in the indictment against the defendant. To prove this, .evidence was given of the commission of the act by another by the defendant’s advice and procurement, but in" his absence. Held, that there, was no variance between the crime as charged and proved.
    Appeal from a judgment of the supreme court, general term, ■ second department, affirming a judgment of the court of general sessions of Kings county entered upon the-verdict of a jury rendered at the trial of the case convicting the defendant of having committed an abortion upon, one Frances Bell.
    
      ■ Abraham Suydam, for app’lt; John F. Clark, district attorney, for resp’ts.
    
      
       Affirming 14 N. Y. State Rep., 495.
    
   Peckham, J.

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 instrument 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 proof in the case showed that at the time of the commission of the act the defendant was absent, but that he bad counseled, induced and procured the crime to be committed. The question was properly "raised on the trial, and the claim was made on the part of the counsel for the defendant that he could not be convicted of the crime alleged in the indictment because the proof showed .that he was absent at the time of its alleged commission, and hence there was not within the meaning of the Code a sufficient allegation in the indictment of the facts constituting the crime as proved. The objections were overruled and the defendant was convicted and sentenced.

Upon appeal the conviction was affirmed by the general term of the supreme court, and from the judgment of affirmance the defendant appealed here.

The question is here 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 produces 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 heretofore existed in cases of felony between a principal and an accessory before the fact, the principal being present and either committing the act himself or aiding in its commission, and the accessory before the fact being absent but counseling and procuring its commission. The case of an accessory before the fact has now by means of this section been made the case of a principal, and he occupies therefore the same position in the case of felony as such an individual heretofore occupied in cases of .treason and of misdemeanor.

In treason it has always been the law that there were no accessories either before or, with one or two minor exceptions, after the fact. 1 Hale’s Pleas of the Crown, 223; East’s Pleas of the Crown, page 93, § 35; 1 Bishop’s Crim. Law, § 681; 1 Wharton’s Am. Cr. Law. § 131. In regard to misdemeanors, the same rule obtains, and when one sustains in misdemeanor a relation which in felony would make him an accessory before the fact, he is treated as a principal, and the indictment charges him as such, and unless 'the pleader chooses, it does not mention that the act was committed by another. 1 Bishop’s Crim. Law, §§ 685, 686.

The rule, therefore, in cases of felony can scarcely be said to exist simply because of the greater gravity of the offense charged, for as it does not exist in treason, which, according to the English law, is the highest crime known to it, the gravity of the' charge cannot be the reason for its existence in cases of felony. It is somewhat' difficult to comprehend the reason for the difference in the rule between cases of treason and misdemeanor on the one hand and felony on the other. Nor can the smallness of the offense in cases of misdemeanor.be the reason for the existence of the rule. ' For by the common law many cases which are made felony in this country by statute were but misdemeanors, the punishment, however, in many of them extending to long terms of imprisonment, and also to the infliction of corporal punishment.

■As late as the case of Beg. v. Greenwood (9 Eng. L. & Eq., 535), which was a case where the prisoner was indicted for uttering counterfeit coin, the crime being a misdemeanor, the rule was applied. The indictment in that case charged the prisoner with knowingly uttering a counterfeit shilling. The proof was that it was uttered by another person in the absence of the prisoner; and the court held that the prisoner was properly convicted under the indictment. The conviction was held good on the ground that the proof showed that the prisoner, although absent when the coin was uttered, was engaged in the common purpose of uttering counterfeit shillings, and the act of uttering the coin in question having been procured and aided by the prisoner, the case stood the samé as if it were his own act. Five judges delivered opinions seriatim, and although they are exceedingly brief, the case shows that it was carefully examined and must be regarded, asjiigh authority upon the question decided.

Another case is that of Reg. v. Clayton & Mooney (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 indictmenr, 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 under 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 afterwards divided it between them, and he requested the court to charge the jury that if the butter was thus stolen he was simply an accessory and could not be convicted as a principal for the crime of petit larceny.The court refused and charged that if. the other - person stole the butter in the prisoner’s absence by his advice and procurement he might be convicted under the indictment as a principal, as there were no accessories in petit larceny.

The supreme court held the conviction proper (see Ward v. People, 3 Hill, 395), and the conviction was affirmed by the court of errors. Chancellor Walworth writing the opinion. The doctrine was there stated that those who procure, aid or advise in the commission of the offense of petit larceny are principals, and that the same one obtains in cases of treason.

In England, by the statute (11 and 12 Vict., 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 be were a principal felon.”

The same provision is reiterated in 24 and 25 .Victoria, chapter 94, section 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. C. L., same pages), it appeared that two persons, who were husband and wife, were charged as principals in the crime of murder. The recorder of London, in his charge to the grand jury with reference to the case, said : “ The material question in this case is, whether this woman has taken such a share in the transaction as to make her an accessory before the fact, or whether she was present when the crime was committed, in either of which cases she will be liable under the statute (11 and 12 Vic., chap. 46, § 1), to be indicted as a principal in the murder. It will be for you to consider, therefore, whether there is any evidence of a counseling or procuring the murder to be committed by either of the parties accused, and more particularly by the woman. The indictment wilí probably charge both-these persons, husband and wife, as principals in the commission of the crime ; and by the statute to which I have referred both classes of offenses, namely, that of an accessory before the fact and that of a principal may now be dealt with alike in the mode of indictment and- trial, and proof of a party being either an accessory before the fact, the perpetrator of the crime, or that he was present aiding and abbetting in the commission of it, will support an indictment charging him as principal.”

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 theretofore 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 Crim. Law, §§ 656, 673, 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 any one 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 he advised and procured to do it would not prove his own guilt of the act charged.

By section 275 of the Code of Criminal Procedure it is enacted that the indictment must contain a plain and concise statement of the act constituting the crime without unnecessary repetition; and by section 284, subd. 7, it is stated that the indictment is sufficient if the act or omission charged as a crime is stated with such a degree of certainty as to enable a court to pronounce judgment upon conviction according to the rights of the case.

Here the act constituting the crime was the insertion of an instrument in the body of the prosecutrix and thereby procuring an abortion. That act was plainly charged against the defendant, and in order to prove it evidence was given of- the commission of the act by another by the defendant’s advice and procurement, but in'his absence. The act that rendered him guilty is charged in the indictment, and it was not a case of variance between the crime as charged and the proof as made.

We think the case of People v. Dumar (106 N. Y., 502; 11 N. Y. State Rep., 19) 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.

Here, as it seems to us, the crime was clearly and properly charged, and the proof shows the defendant to have been guilty of the very .act with the commission of which the indictment - charged him.

It was proved by showing that the act, although committed by a third person, and in the absence of the defendant, was so committed by his aid and procurement, and in that way in law and in morals and in good sense he committed the act himself.

This question has been raised in some of the other states where provisions somewhat similar to the section of our-Penal Code have been in existence for some years.

The case of People v. Outeveras (48 Cal., 19) is one which arose under the California statute, which somewhat resembles ours. The prisoner was indicted for the crime of burglary in breaking and entering a dwelling house in the day-time, intending to commit larceny. The proof showed that the entry was made by another than the prisoner, but, pursuant to an arrangement with him, and he being near by the house at the time of the entry and aiding and abetting it. The facts showed that he might have been regarded ás a principal in the second degree; as one who stood by and aided and abetted the commission of the act.

But the court regarded the question in the same manner as if the proof had shown that the prisoner was absent at the time of the commission pf the act, but it had counseled and procured its commission.

The California statute is as follows; “ An accessory is he or she who stands by and aids, abets or assists, or who not being present aiding, abetting or assisting, hath advised or encouraged the commission of the crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly.” The court held that under the indictment charging .him with the commission of the act, the prisoner could be ponvicted by proof that be was present, aiding and abetting, or absent and advising and procuring its commission. This case substantially overrules the case of People v. Campbell, 40 Cal., 129, and that of People v. Trim, 39 Cal., 75, and states, as we think, the better rule on the subject.

In Illinois, the same view has been taken of a similar statute. By the 13th section of the Criminal Code of Illinois, it is declared that ‘An accessory is he or she who stands by and aids, abets or assists, or who not being present, aiding, abetting or assisting, hath advised or encouraged the perpetration of the crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly.” The effect of this section came before the supreme court of Illinois for decision in the case of Baxter v. People, 3 Gilman, 368. The prisoner was indicted for murder, and the proof tended to show that he was not present at the time of the commission of the crime, but had advised and procured its commission, and it was held that the section of the Criminal Code above quoted, had abolished the distinction between accessories before the fact and principals, and that as accessories before the fact were by such section to be deemed .as principals and punished accordingly, they should be indicted as principals.

In Dempsey v. State of Illinois (47 Ill. Rep., 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 declared 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 advised 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 these cases.

They have long stood unshaken as the law of the land, and unless we could perceive some great and urgent necessity for their being overturned, we are not inclined to overrule or shake their authority. See, also, Spies v. People, 122 Ill., 1, 101, 242.

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, page 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 (41 Ark., 173), the court simply said that accessories before the fact are punishable as principals, but must be indicted as accessories, and referred to the former case of Smith v. State (supra).

We are inclined to agree with the English rule and with the reasoning of the learned judges of California in the1 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 cáses 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 by all. 1 Bishop on Crim. Law, § 682. We think we are treading in the same direction that the legislature intended by the passage of the Penal Code and the Code of Criminal Procedure. The tendency of modern thought as exhibited in criminal legislation is to free the practice from mere technicalities and to bring to the trial of the indictment the very merits of the issue between the people and the defendant and in the plainest and least formal style. _

_ 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 Marshall, 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. See 4 Cranch, 469, at 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 cited as well from England as from other states of the Union. It was stated in the English statute 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 of the defendant’s guilt by reason of his procuring and advising the act to be done, instead of doing it himself, we think we should be taking a step backwards in regard to the proper rules which should obtain in criminal pleadings, and that our decision would be at war with the general policy which led to the adoption of the Penal Code, and especially at war with the sections of the Code already quoted.

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.  