The State of Nevada v. Chapman.

tinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, in cases of felony; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals." (Stats. 1861, 462, Sec. 252.)

Now, by these statutes appellant and his co-defendents are placed upon the same plane. If the latter are guilty, so is he. If he cannot be punished, neither can they. He is to be deemed a principal actor. The act was committed in the State of Nevada; he is deemed and considered a participant therein, though not actually present, and is to be punished accordingly: he and all the others, co-defendants, each and every of them, committed the crime of robbery (if any was committed) in Washoe County, in the State of Nevada. Each and all are equal in guilt; each and all committed the same identical crime in grade and substance: so says the law by which this case must be governed. Here, this statute differs from the one disapproved in a case cited by counsel for appellant: there, the Legislature of North Carolina had passed an Act making the counterfeiting of the bank notes of that State by the residents of neighboring States, in such States, a crime against the State of North Carolina, and authorizing trial, conviction and punishment as if the offense had been committed within the limits of North Carolina; and the Court very properly held that the defendant in such a case could not be punished in North Carolina for an act not done there. (State v. Knight, 3 N. C. 45.)

Counsel for appellant refers also to this other section of the statute last quoted: "In the case of an accessory before or after the fact in the commission of a public offense, the jurisdiction shall be in the county where the offense of the accessory was committed, nothwithstanding the principal offense was committed in another county"; (Stats. 1861, 445, Sec. 91) from which it is argued that. it was not intended by the Legislature to abolish the common law between an accessory before the fact and a principal. There does appear to be some incongruity between the different sections cited; but the practical application of the last one quoted does not arise in

The State of Nevada v. Chapman.

this case, and it is hardly worth while to spend time in the attempt to reconcile a conflict, if conflict there be, which may, perhaps, never in reality occur. Suffice it to say for the present, that the sections first hereinbefore quoted do apply to the case in hand, and are clear and conclusive upon the point under review.

Counsel contends in the second place, that "a person guilty only as an accessory must be specially charged as such, and cannot be convicted as a principal." It might be enough to say admit the proposition, and it proves nothing material to the case; as the statutes of this State recognize no such criminal; but as the Supreme Court of California, upon identical statutes, have held differently, it will probably be more satisfactory to make a more thorough examination of the proposition. The other cases cited demand no attention, because based either upon the common law, or differing statutes. So to the California case. Say the Supreme Court of that State: "In the opinion delivered in this case at the present term, and in the case of the People v. Trim, decided at the last January term, we held that though an accessory before the fact, under the statutes of this State, may be tried, convicted and punished as principal, nevertheless, the indictment against him must specify that he aided and abetted the crime, and must state in what particular manner he aided and abetted it; and that if the indictment charge that he in person perpetrated the crime, it will not be sustained by proof that he only aided and abetted it, or in other words, was an accessory before the fact. Since these decisions were rendered, our attention has been specially called to section two hundred and fifty-five of the Criminal Practice Act, under the belief that it may have escaped our observation; and in order to avoid all misapprehension, in respect to an important point in practice, we deem it proper to say that we find nothing in that section inconsistent with the conclusion already announced. The sole purpose of that section was to abolish all distinction, in cases of felony, between an accessory before the fact and the principal, in respect to the grade of the offense, and to its punishment. The accessory is to be indicted, tried and punished as the principal; nevertheless, the particular acts which establish that he aided and abetted the crime, and thus became in law the principal, must be stated in the

The State of Nevada v. Chapman.

indictment. When these facts are averred and proved, the law considers the accused to be the principal, and condemns him accordingly. But section two hundred and thirty-seven of the Criminal Practice Act provides that the indictment shall contain "a statement of the acts constituting the offense"; and this important requirement would be wholly ignored if an indictment which alleges that the defendant in person committed the crime would be supported by proof that he only aided and abetted it. It is a fundamental principle in criminal jurisprudence, that the accused is entitled to be informed by the indictment of the particular acts which he is alleged to have committed, as constituting the offense; and if he, in fact, only aided and abetted the crime, the fact must be so stated in the indictment. He then comes to the trial with a knowledge of the acts which are imputed to him. But, on the opposite theory, the indictment would charge him with one act, or series of acts; and he might be convicted on proof of a wholly different act, or series of acts. We can attribute no such unreasonable result to our Legislature on the subject. We think the true rule on this subject is laid down in People v. Swartz, 32 Cal. 160; People v. Campbell, Oct. Term, 1870.

It is claimed by counsel for respondent, that prior cases in California-the law when the statutes of the State of Nevada were adopted—are in conflict with the case just cited; but they are not clearly so on the precise point at issue; but the argument of counsel upon principle and reason is conclusive.

Counsel says, and so is the law, that at common law, in the highest and in the lowest crimes, high treason and misdemeanor, there are no accessories; that an indictment charging a defendant as principal actor in treason or misdemeanor is supported by proofs that defendant counselled or advised, or aided or abetted in the commission of the crime.

Says Mr. Bishop: "The doctrine of the books, let us remember, is that in treason there are no accessories; but that they who in felony would be such, are in treason principal offenders. Let us see what this doctrine implies, as concerns accessories before the fact. It implies the right of the prosecuting power to treat them as having done the act. The indictment against them may mention

The State of Nevada v. Chapman.

the thing as performed through the agency of another; or it may omit the matter of agency, and leave the prosecutor producing the proofs to rely on the legal rule that what one does by an agent is to be regarded as done by himself; either form of allegation according with the established practice in all other pleadings civil and criminal. That such is the only true meaning which this doctrine can have is plain; because the distinction between the accessory before the fact and his principal, in felony, is merely in the form of the allegation, and in the order of the trial; while, as we have seen, the accessory would be a principal but for a technical rule of the old common law, introduced therein by a blunder, against sound reason, and against the general teachings of the common law itself in both civil and criminal jurisprudence. (1 Bishop Crim. Law. Sec. 624. See also Secs. 616 and 627.)

It must be confessed, that no greater particularity in setting forth the acts or facts constituting a crime, is required by the statutes of the States of California or Nevada, than at common law. If, then, it would have been sufficient at common law, to have charged an accessory to a felony as principal, but for the technical rule which has been abrogated by those statutes, it necessarily follows, that under such statutes such pleading is good. The reasoning of the California case quoted, if carried to its logical conclusion, would result in a recapitulation of the evidence relied on for a conviction in the indictment. Take for instance this case, leaving appellant for the moment at one side. Several parties were present at the commission of a robbery; one did one act, one another, and so on. Does the law require a recital of the separate acts of each person? Certainly not; that is a matter of proof.

The offense is robbery. The general act constituting such offense necessary to be charged, is the "felonious and violent taking of money, goods, or other valuable thing, from the person of another by force or intimidation." (Stats. 1861, 66, Sec. 60.) The particulars required to be stated are, the time, place, property, and person from whom the same is taken. Not the special act which any one accused may have done in active or passive aid of the ultimate acts; but the ultimatum. If in this case Squiers uncoupled the cars; Davis held a gun; Cockerell gagged the messenger, and others did

The State of Nevada v. Chapman.

other acts; yet it is not necessary to state these doings; that would not be claimed by any criminal lawyer; because the mere aiding presence constitutes, in the eye of the law, a commission of any and everything which, when combined, produce the consummation.

So the statute referred to, wiping out the technical distinction of the common law in felonies, says, that one aiding, abetting, assisting, advising, or encouraging, though not present, shall be deemed and considered as principal, and present and punished accordingly; precisely as at common law such an one was treated in case of high treason or misdemeanor; that, as there, no distinction shall "hereafter" from the date of the statutes in the States named, exist, between an accessory before the fact and a principal; and that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, shall be indicted, tried and punished, as principals.

It would be difficult to conceive of language more clearly abolishing the distinction of the common law; and so say the Supreme Court of California. This premise admitted, it would seem that the only logical conclusion must be, that as to the principal actors at a felony, of whom the accessory before the fact is one, only ultimate acts need be stated; and that with regard to these, it is generally sufficient to charge the acts or facts of the crime in the language of the statute, supplying in every case the particulars as before suggested. In any event, no rule of pleading either requires or permits the recital of personal or individual acts, as distinguished or subdivided from the totality constituting the crime sought to be charged; such acts are to be proved as the basis, whence results the legal conclusion of guilt. So, when a robbery is charged under the statute in question, proof that one held a gun; that one took the property; that one, not present, had theretofore in any manner aided, advised, or encouraged the final act, would necessarily, against all as well as either, support the legal conclusion of a crime committed. These remarks dispose of all that is substantial in the points presented and urged upon this appeal, which is, as has been endeavoured to be shown, not well taken.

The various orders of the District Court and its judgment are affirmed.