
    AIDERS AND ABETTORS — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Marvin, Winch and Henry, JJ.
    State of Ohio v. Frank Nowak.
    Aider Cannot be Convicted in Same Trial Acquitting Principal.
    An aider and abettor can not be convicted in the same proceeding and by the same jury which acquits his principal.
    [Syllabus by the court.]
    
      N. D. Baker, city solicitor, for plaintiff.
    
      J. A. Thompson, for defendant.
   HENRY, J.

This proceeding in error is brought to reverse the judgment of the court of common pleas, setting aside the judgment of the police court of the city of Cleveland, whereby Frank Nowak was convicted of aiding and abetting extortion by a special constable, one Anton Novak. The affidavit under which both men were arrested and tried charges the offenses defined by Secs. 0909 and 6804 ft. S. (Sees. 12380 G. C.). The accused were jointly tried, the principal being acquitted and the aider and abettor convicted.

The manifest anomaly of this situation is here sought to be justified by the city solicitor, who contends that there is no necessary contradiction therein. It is suggested that the jury’s verdict may well have proceeded upon some assumption not affecting the merits of the transaction, as, for example, that Anton Novak’s appointment as special constable was defective, or that he asked unwittingly the excessive fees which he exacted. If the jury believed either of these things to be true, their acquittal is explained by their inability to find that he was ‘ ‘ An officer * # * who knowingly asks,” etc., within the meaning of the extortion statute. This, they could do, it is urged, concurrently with finding that the defendant in error here aided and abetted the perpetration of the extortion which was actually committed.

It is undoubtedly true that an aider and abettor may be convicted without previous trial of the principal, but we do not think it is true that an aider and abettor can be convicted in the same proceeding and by the same jury that acquits his principal.

Section 6804 R. S. (Sec. 12380 G. C.), provides that “whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.”

This defines a substantive offense, but it is not utterly independent of the principal’s offense, whatever that may be. No one can aid another to commit an offense, if that other does not commit the offense. An act may be ever so reprehensible morally without being criminal, unless a statute defines it as such. The statute defining the offense of aiding and abetting makes the existence of that offense depend upon the actual perpetration of some other offense by the person who is aided and abetted. If the principal is the person who is not guilty of any offense, or if, in other words no offense has been committed, then there can have been no aiding or abetting thereof.

We find no error in the judgment of the court of common pleas and the same is affirmed.

Marvin and Winch, JJ., concur.  