Moore v. Lowe , 116 W. Va. 165 ( 1935 )

Robert M. Lowe, respondent, sheriff of Brooke County, prosecutes error to an order of the circuit court of said county discharging from his custody, on writ of habeas corpus, Wessie Moore, relator.

She stands convicted of voluntary manslaughter and is being held pending disposition by the trial court of her motion in arrest of judgment. The conviction resulted from a trial under an indictment charging her as accessory before the fact to the murder of her husband, James Moore. The jury specifically acquitted her of murder. Cleve Holley, the slayer, confessed to first degree murder and was sentenced to life imprisonment.

It is the contention of the relator, approved by the circuit court, that under an indictment as accessory before the fact to murder there can not be a conviction of voluntary manslaughter; that such an indictment is not inclusive of the lesser offense.

The right of relator to have this matter determined in habeas corpus was challenged by the respondent on the theory that relator's proper course would be upon writ of error, if and when judgment be entered on the verdict. Irregularities are subjects for review; illegalities, for habeas corpus, where personal liberty is at stake. Ex Parte Mooney, 26 W. Va. 36,40, 53 Am. Rep. 59; Ex Parte Barr, 79 W. Va. 681, 91 S.E. 655. If relator were being unjustly deprived of her liberty, it would not be because of irregularity in the trial but because of an illegal verdict. She has the right to have the matter decided in habeas corpus.

An accessory before the fact is not the principal actor in the crime, nor present at its commission, but is one who, in some manner, procures or instigates its performance. IV Blackstone's Commentaries, p. 35; 1 Wharton's Criminal Law (12th Ed.), sec. 263; 1 Ruling Case Law, p. 144; State v.Ellison, 49 W. Va. 70, 38 S.E. 574; State v. Roberts, 50 W. Va. 422,40 S.E. 484.

One accused as accessory before the fact must be indicted as such and not for the offense committed by the actual perpetrator of the crime — the principal in the first degree.State v. Powers, 91 W. Va. 737, 747, 113 S.E. 912; State v.Lilly, 47 W. Va. 496, 35 S.E. 837. But an accessory before the fact, though thus indicted and prosecuted, is punishable in the same manner as a principal in the first degree. Code, 61-11-6.

Not directly involved here, but having effective bearing on the issue, is the proposition of whether a person may be convicted as accessory before the fact to voluntary manslaughter.

It was the common law rule that in manslaughter there could be no accessories before the fact. The holding seems first to have been made in Bibithe's Case (1597), 76 English Reports (Reprint) 991, where it was determined that a slayer having been convicted of voluntary manslaughter instead of murder, the accessory before the fact should be discharged. That case is cited in I Hale's Pleas of the Crown 437 in support of the statement: "In manslaughter there can be no accessories before the fact, for it is presumed to be sudden, for if it were with advice, command, or deliberation, it is murder and not manslaughter, and the like of se defendendo." Following this view Sir William Blackstone states: "In manslaughter there can be no accessories before the fact; because it must be done without premeditation." IV Blackstone 191. Whether that concept still obtains in England is not clear from cases available. Illustrative: Regina v. Taylor (1875), 13 Cox's Crim. Law Cases 68.

Some of the American courts have followed the principle ofBibithe's Case. State v. O'Shields, 163 S.C. 408, 161 S.E. 692;State v. Kinchen, 126 La. 39, 52 So. 185; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Boyd v. State, 17 Ga. 194. But not all of the courts have adopted that view. Thomas v. State,73 Fla. 115, 74 So. 1; State v. Hermann, 117 Mo. 629,23 S.W. 1071, 1073; People v. Newberry, 20 Cal. 440. Cf.State v. McVay, 47 R.I. 292, 132 A. 436, 44 A.L.R. 572 (annotation appended), and I Bishop's Criminal Law (9th Ed.), sec. 678. The matter is clearly discussed in Wharton's Criminal Law (12th Ed.), secs. 269 and 276. In the latter section the author says:

"Under the old law, the defendant was first convicted, and then the accessory was charged with being accessory to the offense which the conviction covered. But now that instigation is a substantive offense, it must be remembered that the offense of the instigator is not necessarily of the same grade as that of the perpetrator. The instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool someone whom that enemy has aggrieved, and who is infuriated by his grievance. Hence an accessory before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter; or the accessory before the fact (instigator), acting in hot blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder." The author uses "instigator" as synonymous with "accessory before the fact." Vide, sec. 268.

The common law requirement that the principal be convicted before prosecution of the accessory could proceed, has been changed in this state by statute. Code, 61-11-7. An accessory, before or after the fact, may now be prosecuted whether the principal has been brought to justice or not. In this sense, at least, the crime of accessory before the fact becomes in this state a substantive offense. It, of course, remains contingent upon the fact of the commission of the principal offense. A person in heat of passion, and, on impulse of anger, may prompt A to kill B. Acting with deliberation, A performs the act and becomes a murderer; the instigator (accessory before the fact) is guilty of voluntary manslaughter. The controlling element of A's crime is malice, of the instigator's, passion.

The record of the trial of relator is not before us. Nonconstat but that she acted in hot blood in inciting Cleve Holley to kill her husband, and that there was no opportunity for her to retract after the incitement was given. On the other hand, if she did not act in heat of passion, so that there is no logical nor technical basis for the manslaughter verdict, may such verdict nevertheless be upheld under principles next discussed?

A conviction of manslaughter under a murder indictment will not be set aside on the ground that the evidence is compatible only with murder or innocence. II Michie on Homicide, sec. 342; Wharton on Homicide (3d Ed.), sec. 653; State v. Prater, 52 W. Va. 132,143, 43 S.E. 230.

In the light of the fact that, under settled law, a manslaughter verdict against a principal will be upheld (if there was no prejudicial error at the trial), though the evidence clearly demonstrated that he was guilty of murder, the query arises as to whether a person tried as accessory before the fact to murder, guilty of murder if guilty of anything (the elements of manslaughter not being present), may be heard to complain because he received merely a manslaughter conviction.

If a person may be convicted as accessory before the fact to voluntary manslaughter, and we are of opinion that such a conviction may be proper (supra), there would seem to be very narrow basis for the position that he can not be convicted of voluntary manslaughter as accessory before the fact to murder.

In homicide cases, verdicts of lesser degrees of guilt are upheld, where the evidence establishes a higher offense and does not present the elements of the lesser, since a convicted person can not be heard to complain of an error in his favor. Because jurors, actuated by compassion or otherwise, in a given instance, have failed to do their whole duty and have compromised with justice by rendering a verdict for a lower degree of guilt than should have been found, it by no means follows that the accused should go free. In strict logic, a conviction of manslaughter, presupposing heat of passion and excluding malice, perhaps can not be justified where the evidence clearly discloses malice and excludes passion. But the lesson has been taught by experience that it is necessary to uphold such lesser verdicts for the reason that, if not upheld, persons guilty of serious crime often would go unpunished. In those instances there is presented a matter of practical administration of criminal law and not of strict logic.

The offense of accessory before the fact does not rest alone upon instigation, however much there may be. Dual elements must concur; first, the incitement or encouragement, and second, the consummation by the principal offender. When the principal has acted — and only then — does the accessory before the fact become amenable to the law. State v. Ellison, 49 W. Va. 70,38 S.E. 574. It is on that basis that an accessory before the fact may be prosecuted in the county where the crime was completed. Code, 61-11-7; Weil v. Black, 76 W. Va. 685, 693,86 S.E. 666; State v. Overholt, 111 W. Va. 417, 162 S.E. 317.

If an instigated crime was murder, and the instigation be proved, the accessory stands before the law prima facie a murderer; but, as stated, in conceivable circumstances, he may have acted in heat of passion. This, he may show. The accessory is entitled to neither greater nor less consideration than the principal. Their status is substantially the same. If a verdict against the principal (murderer) for voluntary manslaughter is upheld by the law, when, logically, he should have been convicted of murder or acquitted, no reason is perceived why the same principle should not apply to the accessory.

The suggestion is made that though voluntary manslaughter is included in an indictment for murder, such lesser offense is not included in an indictment for accessory before the fact to murder. Our answer is that inasmuch as under the law of this state the guilt of an accessory before the fact is not contingent upon the conviction of the principal, and the accessory is punishable as a principal, the distinction between indictments for the two offenses, respectively, in large measure loses significance. In effect, though not actually, an indictment for accessory before the fact to murder places the accused on trial for murder. The difference between the two situations is theoretical rather than real.

"At common law an accessory cannot be guilty of any other or higher grade of crime than that of which the principal is also guilty. And generally the guilt of the principal in the second degree, or of one who is present aiding and abetting, is measured by the intent of the one actually committing the offense. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as that of the actual doer. But it is now generally held that principals, accessories, and aiders or abettors may be convicted of different grades or degrees of crime, according to their respective intents. This has often been held to be true in homicide cases, for example. So it has been held that an accessory, or principal in the second degree, or an aider and abettor, in a homicide may be found guilty of murder in a higher or lower degree than the actual perpetrator of the crime, or may be convicted of murder though the perpetrator has been convicted of manslaughter, or of manslaughter though the perpetrator has been convicted of murder." I Brill, Cyclopedia Criminal Law, sec. 257.

In the light of the authorities cited, and, for the reasons stated, we have reached the conclusion that the learned circuit judge was in error in ordering the discharge of the relator. We therefore reverse the judgment and dismiss the proceeding.

Reversed; dismissed.