Workman v. State , 216 Ind. 68 ( 1939 )

On Petition for Rehearing On petition for rehearing, the appellant earnestly contends that the court did not clearly understand his objection to the instruction dealing with the impeachment of witnesses, in which the witness Frank Souerdike is referred to by name. The first part of the instruction is a clear and explicit and admittedly correct statement of the law. This is followed by the quoted portion naming the witness Frank Souerdike. The defendant introduced witnesses who testified that the reputation of Frank Souerdike for truth and veracity was bad, and the State called no witnesses to sustain his reputation. The State called witnesses who testified that the reputation of the defendant for truth and veracity was bad, and the defendant called witnesses who testified that his reputation for truth and veracity was good. The quoted part of the instruction directs attention to the evidence tending to impeach Souerdike. It singles out Souerdike, and its tendency is to cast doubt upon his testimony. It is true that the jury is told that, if it believed that he had testified to the truth, it had the right to give credit to his testimony, "even though the said Frank Souerdike has been impeached." It said no more in this respect than had already been said in the general part of the instruction; and the part which singles him out by name cannot be said to be calculated to bolster up and strengthen the value of his testimony. On the other hand, the instruction treats his impeachment as a fact accomplished. There is no basis for the assumption that the jury may have got the impression that his testimony was to be given any greater weight than that of any other witness under the same circumstances. On the other hand, since he was singled out and treated in the instruction as "impeached," the jury might have concluded that, because the evidence as to the reputation of the defendant for truth and veracity was conflicting, he could not be considered as "impeached." We are convinced that the defendant was not prejudiced by the instruction.

And the appellant vigorously renews his contention that, since the evidence shows that at most he only counseled and advised the commission of the crime, he is not an aider or abettor, but an accessory before the fact, and that therefore the venue of any offense committed by him was in the county where he gave the advice and counsel, and not in the county where the crime was perpetrated.

He cites as additional authority Johns v. State (1863),19 Ind. 421. But in that case the court expressly refrained from deciding whether an accessory before 11, 12. the fact, whose acts were committed within this state, could be prosecuted as a principal. There was speculation as to whether an indictment, charging such an accessory with the crime, in the language of the statute, would be sufficient, but this question was not decided. It is true, as pointed out in the opinion, that at common law one who caused a crime to be committed by an innocent agent was deemed guilty of the crime as a principal, and one who caused it to be committed by a guilty agent was deemed not guilty of the crime as a principal, but guilty as an accessory before the fact. But, under our statute, it is now well settled that one who counsels or advises the commission of a crime, and who formerly would have been guilty of being an accessory before the fact, may be charged, tried, convicted, and punished exactly as though he were the principal who actually committed the crime. In Brunaugh v.State (1910), 173 Ind. 483, 90 N.E. 1019, the rule is clearly laid down that, under an indictment in the usual form, which merely follows the language of the statute, a conviction will be sustained upon evidence that the accused actually committed the crime, or that he aided or abetted in its commission, or that he counseled, encouraged, hired, or procured another person to commit it, or that he committed it through the medium of an innocent agent. We are unable to find that this rule has ever been doubted in this state in a case in which the question was presented. See Peats v. State (1938), 213 Ind. 560, 12 N.E.2d 270, and Breaz v. State (1938), 214 Ind. 31, 13 N.E.2d 952. Since the accessory may, under the statute, be tried and convicted "in the same manner as if he were a principal," it cannot be seriously doubted that the venue must be laid in the jurisdiction where the principal would be prosecuted.

Petition for rehearing denied.