274 SUPREME COURT OF ARKANSAS, [37 Ark-Boze Smith v. The State. EOM SMITH V. THE STATE. 1. ACCESSORY: Must not be indicted as a principal. One who advises or encourages the commission of a felony, but is not actually or constructively present when it is committed, can not be-convicted under an indictment charging him as principal in ,the-crime. APPEAL from Faulkner Circuit Court. Hon. J. N. CYPOT, Circuit Judge. STATEMENT. At the March term, 1881, of the Circuit Court, of Faulk-ner county, Boze Smith was indicted for larceny of a bale of. cotton. Upon the trial, the evidence showed that the cotton **as stolen by other parties—that Smith was not present, but that he advised and encouraged them to steal it. The Court instructed the jury "that larceny is the felonious stealing, taking and carrying away the personal property of another, and all persons being present, aiding and assisting, or not being present, hath counseled, advised or procured the larceny to be committed, are principals in law and punished ,. as such; and if the jury should find in this ease that the goods stolen were actually taken by another, that the defendant not being present at the taking, had advised, encouraged or procured the same to be taken, they will find him guil ty." The jury found the defendant guilty, and he filed a motion for new trial for error in the instruction of the court, which being overniled, he filed a bill of exceptions and obtained an appeal from one of the judges of this court.
37 Ark.] NOVEMBER TERM, 1881. 275 Boze Smith v. The State. Clark & Williams, for appellant Argued orally. C. B. Moore, Attorney-General, for the State: I. The testimony shows that the appellant, if not' present, aided and abetted in the theft, and was properly indicted as a principal. Sec. 1240, Gantt's Dig. OPINION. HARRISON, 3.. Section. 1238, Gantt's Digest, declaring that one who aids, assists, abets, advises or encourages another in the commission of a crime "shall be deemed in law a principal and punished accordingly," has no reference to, the manner of charging the offense. Construed with section 1243, part of the same Act (Act of February 16, 1838), which says: "An accessory before or after the . fact, may be indicted, arraigned, tried and punished, although the principal offender may not have been arrested and tried, or may have been pardoned or otherwise charged," ibs obvious meaning is, bu ' t that the punishment of the accessory shall be the same as the principal's, and shall: not depend, as at common law, upon the conviction of the principal. Bid?, on. Start. Crimes, sec. 142; State v. Ricker, 29 Maine, 84; People "v. Trim., 39 Cal., 75; People v. Campbell, 40 Cal., 129. The indictment should contain a statement Of the facts and cirCumstances constituting the offense, that the accused may, be apprised of the nature of the particular accusation on which he is to be tried, and be prepared for his defense. The facts 'and cirenmstances being so materially different, one who has advised or encouraged the commission of a felony, but was not actually or constructively present when it was- committed, cannot be convided upon an indictment
276 SUPREME COURT OF ARKANSAS, [37 Ark. charging bim, not as an accessory before the fact, bnt as a principal perpetrator of the crime. 1 Risk. Crint. Law., see. 803; Rex. V. Manners 7 Car. Payne, 801: The instruction was erroneous and should not have been gi ven. The judgment must . be reversed and the cause remanded:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.