Bishop v. State , 118 Ga. 799 ( 1903 )

Lamar, J.

The only point argued in the brief is that one can not be accessory where he could not have been the principal; that the offense defined in the Penal Code, § 188, can only be committed by officers or employees of a corporation; and as Bishop was not connected with the bank, it was legally impossible for him to be guilty of embezzlement, or of conspiring, aiding, and abetting Mathews, the president, in secreting, taking and carrying away the property alleged to have been misappropriated.

There are many offenses which can only be committed by particular classes of the community; bigamy by married persons; rape, seduction, and bastardy by males; larceny after trust by bailees; embezzlement by officers; and many others set out in the Penal Code. But because one can not be a principal it by no means follows that he can not be punished as an abettor. One can assist in that which he can not do. Penal Code, § § 42, 44, 45. Upon the adoption of a statute defining a new felony, it becomes incorporated in the body of the criminal law, and draws to itself all the general rules applicable to indictment, evidence, and procedure incident to other crimes of the same grade; and without being mentioned in the act, the regulations applicable to accessories instantly attach. Penal Code, § 31. Thus, an unmarried man can be convicted as principal in the second degree of bigamy; a woman may be punished for aiding one attempting rape; and those not named may be convicted as accessories in the statutory offense of “ Mother concealing death of illegitimate child,” or “ Postmaster making false return.” Boggus v. State, 34 Ga. 275; Lord Audley’s case, 1 State Trials; Jones v. State, 83 N. C. 603, 35 Am. Rep. 586; U. S. v. Snider, 14 Fed. Rep. 554; U. S. v. Bayer, 4 Dill. C. C. 407; State v. Sprague, 4 R. I. 257. In Rex v. Potts, 1 Russell & Ryan, * 353, in a prosecution under a statute making it a felony to impersonate one entitled to receive a pension, a woman was indicted for assisting a man in the commission of this offense. As the statute made no provision against abettors, the trial judge doubted whether the doctrine as to principals in the second degree applied, because the two principals should usually be charged jointly, and it appeared difficult to allege that a man and a woman jointly personated one man. It appeared, however, that she was present when the money was drawn, called him by the false name, and thus assisted him in procuring the pension money; and on question reserved the court held that a person present, aiding and abetting another, was within the act.

While the common-law offense of conspiracy has not been incorporated in the Penal Code, our books recognize that one may conspire with another to commit a crime. In such instances the crime is that prohibited by the statute, and the conspiracy is referred to as an incident, and one of the means by which the act is accomplished. Nobles v. State, 98 Ga. 79; Penal Code, §44. It is not alleged that Bishop was present at the time of the commission of the offense; nor was it necessary to denominate him an accessory, it being charged as a fact that he aided and assisted Mathews, the president, in procuring, secreting, and fraudulently taking and carrying away the money of the bank. This was sufficient, and the principal and accessory can be joined in the same count. Bish. New. Or. Proc. §§467, 468; Bish. Dir. & Forms (2d ed.), § 113; Bulloch v. State, 10 Ga. 48 (6); Loyd v. State, 45 Ga. 71; Penal Code, § 44. The question as to joinder of offenses was not argued iu the brief. We find no error in overruling the demurrer to the indictment.

Judgment affirmed.

All the Jiistices concur.