
    Zoeth Wagner and Lawrence Wagner v. State of Nebraska.
    Filed December 4, 1894.
    No. 6666.
    1. Criminal Law: Accessories. In misdemeanors there are no accessories. Those whose conduct is such that it would constitute them accessories before the fact, if the principal offense were a felony, are, if it be a misdemeanor, guilty as principals.
    2. Information: Assault. Therefore, under an information charging the defendant with procuring, aiding, and abetting another to commit an assault with intent to wound, the defendant may be convicted of assault and battery.
    3. -: Felonies. An information which in apt words charges the commission of an offense, which the statute makes a felony, is not bad because it does not charge that the act was feloniously committed.
    4. Criminal Law: Intent: Accessories. Where a particular intent is an essential element of a crime, oue is not guilty as an accessory before the fact to such crime unless he participates in, or has knowledge of such intent.
    Error to the district court for York county. Tried below before Wheeler, J.
    
      George B. France, for plaintiffs in error.
    
      George H. Hastings, Attorney General, contra.
    
   Irvine, C.

The plaintiffs in error, together with Otis Koontz, were-informed against in one information, charging Otis Koontz. with stabbing one Casper Salmen with intent to wound, and charging Lawrence Wagner and Zoeth Wagner, the-plaintiffs in error, with having before said offense procured, incited, abetted, and aided Koontz in the perpetration, thereof. Koontz demanded a separate trial, was convicted and sentenced. The two Wagners were tried together. Lawrence Wagner was convicted of assault and battery. Zoeth Wagner was found guilty as charged in the information. They were sentenced and have filed separate petitions in error to reverse the several judgments against them.

Lawrence Wagner filed no motion for a new trial, and: the only point arising in his case, and the only one argued by counsel, is that under an information charging him as accessory before the fact to the statutory felony of stabbing with intent to wound no conviction could be had of assault and battery. It is familiar law that no conviction as accessory will lie under an indictment charging one as principal, and viceversa (Wharton, Criminal Law, 208); but it is also true that in misdemeanors there are no accessories. This rule does not mean that one conducting himself in such a manner that if the principal offense were a felony he would be an accessory is not punishable at all, if the offense be a misdemeanor, but it means that in misdemeanors the law does not distinguish between principals and accessories, and that all who participate, whether present or absent when the crime is committed, are alike guilty as principals. (Wharton, Criminal Law, 223.) This is true whether the offense is one at common law or whether it is one created by statute. (Stratton v. State, 45 Ind., 468; Lowenstein v. People, 54 Barb. [N. Y.], 299.) It would seem, therefore, that at common law language sufficient, if the offense were a felony, to charge one as accessory before-the fact, would constitute a good indictment, in the case of a misdemeanor, as principal and sustain a conviction as-such. It is true that the criminal jurisprudence of this-state is based on the Criminal Code, but we think that the-Code is in this respect declaratory of the common law. The first section of the Criminal Code provides for the-punishment of those who “aid, abet, or procure any other person to commit any felony.” This section provides for-the punishment of accessories before the fact in the same-manner as at common law, and the terms used are substantially the terms used in defining at common law such accessories; the definition is restricted to felonies. Generally throughout the Code offenses existing at common law are-described by their common law terms without further definition, and such offenses have always been construed with, reference to the common law. The statute in regard to-batteries does not use the term “battery,” but uses the language “unlawfully strike or wound another.” This is-substantially the common law definition of a battery, although, perhaps, somewhat restricted as to the nature of the beating required, but not as to the persons, doing it. We think it quite clear that the legislature did not intend by defining accessories in the terms of common law to prevent the punishment of those who aid, abet, or procure the commission of misdemeanors, and that such persons remain punishable as principals. If this be so, then the information in charging the aiding, abetting, and procuring of the perpetration of the felony sufficiently charged the aiding, abetting, and procuring of minor offenses included in the greater charge, and so by apt words charged Lawrence Wagner with acts which in law constituted him a principal to the misdemeanor of which he was convicted. The judgment as to Lawrence Wagner must, therefore, be affirmed.

Zoeth Wagner was convicted of being an accessory before the fact of stabbing with intent to wound. He filed a motion for a new trial and" a number of errors are assigned. The first is that the information is insufficient. The information, omitting the purely formal parts, is as follows: “That Otis Koontz, on the 25th day of April, A. H. 1893, in said county of York, in and upon one Casper Salmen, then and there being, unlawfully and maliciously did make an assault with a certain knife which he, the said Otis Koontz, then and there in his right hand had and held, said Casper Salmen on his left breast and on the head near the top of him, the said Casper Salmen, the said Otis Koontz, then and there unlawfully, maliciously, and feloniously, did strike, stab, cut, and wound, with the intent then and there of him the said Otis Koontz, him the said Casper Salmen, then and there to wound; and before said striking, stabbing, and wounding, and felony were committed by the said Otis Koontz, to-wit, on the 25th day of April, A. D. 1893, Lawrence Wagner and Zoeth Wagner, in said county of York, unlawfully, purposely, and feloniously did procure, incite, abet, and aid him, the said Otis Koontz, in the perpetration of the said striking, stabbing, cutting, and wounding, and felony, in the aforesaid manner and form.” The defect which it is claimed exists in this information is that it fails to charge that Koontz “feloniously” made the assault, and that it cannot properly charge an offense against the accessory without sufficiently charging the principal. We do not think the information deficient in this respect. It will be observed that the information charges that ICoontz unlawfully and maliciously made the assault, and unlawfully “and feloniously did strike, stab, cut, and wound” Sal men with intent to wound him. We think the latter language sufficiently charges the assault to be felonious, but aside from that we do not think that the information would be bad for the total failure to use the word “felonious,” provided the offense were otherwise correctly described. The statute creating this offense is as follows: “If any person shall maliciously shoot, stab, cut, or shoot at any other person with intent to kill, wound, or maim such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years nor less than one year.” (Criminal Code, sec. 16.) Under this statute it has been held that the use of the word “maliciously ” was not essential to charge the offense, the other words being sufficient to charge what in law amounts to malice. (Whitman v. State, 17 Neb., 224.) In that case, as well as in Hopkins v. State, 36 Neb., 160, it was held that it was not even necessary to use the precise words of the statute, provided words identical in meaning were used. This information uses the words of the statute. The Criminal Code constitutes all offenses punishable by imprisonment in the penitentiary felonies. (Criminal Code, sec. 247.) Section 16, above quoted, defines this offense and makes it punishable in the penitentiary. The offense being charged in all the terms of the statute, the words used, in their legal intendment, charged a felony, and the use of the expletive “feloniously” was unnecessary. This is especially true in view of section 412 of the Criminal Code, providing that no indictment shall be deeme'd invalid, nor shall the trial, judgment, or other proceedings be stayed, arrested, or in any manner affected for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. The omission of the purely expletive “feloniously” could not by any possibility tend to the prejudice of Wagner upon the merits.

It is urged, however, that the evidence was insufficient to sustain this verdict against Zoeth Wagner, and we think this assignment well taken. The evidence tends to show that on the afternoon preceding the events upon which the information is based Koontz and Lawrence Wagner, both more or less intoxicated, were entertaining themselves by riding a horse back and forth on the sidewalks of the town of Lush ton. Salmen, who was employed in a store in the town, remonstrated with them and an altercation ensued between him and Koontz. Salmen withdrew into the stoie. Koontz and Lawrence Wagner soon after dismounted and Lawrence Wagner entered the store and used language towards Salmen of a character tending to incite the latter to violence. The proprietor of the store compelled them to desist, when Lawrence Wagner invited Salmen to come outside, and repeated the offensive language. Salmen accepted the invitation, and going outside, an affray took place in which Lawrence Wagner received what seems to be a well merited punishment. Salmen then returned to the store. Some time afterwards and about dark Koontz entered the store and quietly addressing Salmen asked him to come outside, saying he wished to speak to him. Salmen went out and the altercation of the afternoon was at once renewed. Both men took off their coats, but the sleeve of Koontz did not at once slip over his right hand. When Koontz got his coat removed the men started for one another and almost simultaneous blows were struck. Koontz’s blow was received by Salmen on the top of his head and turned out to be a stab with a knife. Koontz struck again, stabbing Salmen in the breast. Salmen called out to the by-standers that Koontz had a knife, to take it •away from him. Either by Salmen’s efforts or the action of the by-standers the knife was then wrenched from Koontz’s hand, when Salmen proceeded to knock Koontz ■down and administer a somewhat severe punishment to him. Spectators then interfered, Salmen went to a physician to have his wounds dressed, and Koontz was placed under arrest. The evidence connecting Zoeth Wagner with the occurrence is as follows: Zoeth Wagner lived a short distance from the town with his father. About the time of Salmeu’s affray with Lawrence, Koontz went to the Wagner house accompanied by a man who testifies that when they reached the house Koontz knocked at the door and Zoeth came out. A whispered conversation occurred between Zoeth and Koontz. The witness and Koontz started back to town and Zoeth overtook them as they walked. There is evidence to show that after reaching town a short conversation took place between Lawrence and Zoeth. Zoeth afterwards stood outside the store and was there while Koontz was within and when he ■came out followed by Salmen. There is testimony tending to show that when Koontz’s sleeve caught as he was taking his coat off, Zoeth called out to Salmen, “Don’t jump onto him until he gets his coat off,” and that after Koontz got ■his coat off Zoeth said, addressing Koontz, “ Give it to him now you have got him, give it to him.” There is evidence tending to show that after the knife was taken or fell from Koontz’s hand, and while Salmen was beating Koontz, Zoeth made some effort to make his way through the crowd and reach the combatauts. Zoeth Wagner relates the conversation between him and Koontz at the Wagner house, and his is the only testimony upon the subject. He says that Koontz informed him that his brother Lawrence wished him to come to town; he asked if Lawrence was •drunk; Koontz said he was. The conversation was held in a low tone to prevent the father of the Wagners from hearing it. Zoeth then finished his supper and started to town for the purpose of looking after Lawrence. We think that thus far the evidence would be sufficient to warrant the jury in finding that Zoeth abetted Koontz in an assault on Salmon, but there is certainly nothing so far to justify the inference that he was a participant in the purpose of stabbing Salmen or in the intent of wounding him. Several witnesses testify that Zoeth Wagner was in the store after the affray; that Koontz was brought in and’ that a low conversation occurred between him and Zoeth. One witness testifies that he heard Koontz ask Zoeth if the latter had got his (Zoeth’s) knife; the answer was not. heard. There is no evidence that the knife used belonged to Zoeth or had ever been in his possession, although the knife was produced at the trial. On the contrary, there is evidence that a similar knife had been seen in Koontz’s possession several days before. If in order to constitute Zoeth guilty of the offense of which he was convicted it. was necessary to show that he participated in Koontz’s intent of wounding Salmen, we do not think this evidence in a criminal case is sufficient to establish such participation. If there were any proof that the knife belonged to Zoeth the case might be different; but it would be to establish a felony on very slender evidence if a witness’ recollection as to the use of a pronoun in an overheard whispered question to which the answer was not heard were permitted to supply this proof. We therefore proceed upon the ground that, the evidence was sufficient to justify the jury in finding that Zoeth had in some manner counseled, aided, or abetted Koontz in making an assault upon Salmen, but that it was insufficient to show that Wagner contemplated an assault with a knife with the intention on the part of Koontz of wounding Salmen. Under this state of facts was Salmen guilty as an accessory to the felonious assault ? We think the general rule is that one who counsels or invites another to perpetrate an act is responsible not only for that act, but for all the probable consequences of such counsel, and we are aware that if it be shown that several conspire to commit an offense, and if in the act of committing that offense another-is committed, there are cases that hold that all engaged in the conspiracy are responsible for the latter crime. This is the effect of all the cases cited by the attorney general in support of this conviction. But this is a crime of a peculiar nature. The intent to wound by stabbing is an essential element of the principal offense, and where a particular intent is requisite to constitute a crime, one who is not present, in order to be an accessory before the fact, must have participated in that particular intent. (Meister v. People, 31 Mich., 99; Savage v. State, 18 Fla., 909.) Where a specific intent is not an element of the offense, one who instigates an act, the natural and probable consequence of which is the commission of other acts.constituting such offense, may be reasonably charged as accessory thereto. But where a specific intent is essential to constitute an offense, how can it be said that one who instigates an entirely different act, neither knowing nor contemplating the formation of that specific unlawful intention on the part of the person instigated, nor intending to place such intention in his mind, is guilty of having procured, aided, or abetted the offense to which such intent is essential? We think the jury was not warranted from the evidence referred to in finding that Zoeth Wagner either knew of the intention on the part of Koontz to stab and wound Salmen, or that with the intention himself of having Salmen wounded he instigated Koontz to assault him. The judgment against Zoeth Wagner is, therefore, reversed and the' cause as to him remanded for a new trial.

Judgment accordingly.  