Raiford v. State , 59 Ala. 106 ( 1877 )

STONE, J.

— Our statute has abolished the distinction between the principals in the first and second degree, and between either of these and accessories before the fact, so far as that distinction prevailed at common law in cases of felony. Code of 1876, §4802. “And all persons concerned in the commission of a felony, Avhether they directly commit the act constituting the offence, or aid or abet in its commission, though not present, must (as in the case of misdemeanor) be indicted, tried and punished as principals.” — Scott v. The State, 30 Ala. 503. In Wharton’s American Criminal Law, section 118, it is said “ any participation in a general felonious plan, provided such participation be concerted, and there be constructive presence, is enough to make a man principal in the second degree.” Section 124: “ There must be presence, either actual or constructive, at the time of the commission of the offence. It is not necessary that the party should be actually present, an ear or an eye witness to the transaction; he is, in construction of law, present, aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise.” — 4 Blackst. Com. 34. In 1 Bishop on Criminal Law, section 604, it is said, “Next we have the offence of him who stands by, encouraging the act of crime, while the hand of another performs it. Such an offender is principal of the second degree.”

The words aid and abet, in legal phrase, are pretty much the synonyms of each other. See Bouvier’s Law Dictionary, and see the word abet in Webster’s Dictionary. They comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance, should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid, should it become necessary, then that ingredient of the offence is made out. And if, the foregoing fact being found, Walter Raiford committed the alleged assault under circumstances to render his act an assault with intent to commit murder under the statute, then the jury would have been justified in finding the defendant guilty. Of course, the presiding judge, in charging the jury, should not adopt the general language employed above, but should define the statutory felony of assault with intent to commit murder.

Under the testimony in this record, if the defendant is guilty, the degree of his guilt is what was known at the common law as a principal in the second degree. The charge asked fairly specified the ingredients of that grade of offence, with some of the elements of an accessory before the fact. We think this charge should have been given.

Reversed and remanded. Let the prisoner remain in custody until discharged by due course of law.