Opinion
No. 3618.
Decided December 23, 1946.
An indictment reciting that the respondent passenger in a motor vehicle "feloniously was present aiding, abetting and assisting the [driver of such vehicle], the felony, crime and offense . . . to do and commit" charges the respondent as a principal in the second degree with a violation of the so-called hit and run statute (R. L., c. 118, s. 19). The common-law rule as to principals in the second degree has not been modified by statute in this state. Knowledge that the felon was guilty need not be stated in an indictment charging a respondent with aiding, abetting and assisting the felon in violating the provisions of R. L., c. 118, s. 20 relating to leaving the scene of an accident. When a statute creates a new felony, whether out of what was before innocent, or was a misdemeanor, those who are present aiding one who personally commits it are principals. R. L., c. 118, s. 18, does not restrict criminal liability to the actual perpetrator of the offense but applies as well to those who by their words and conduct aid, abet or assist, the felon in leaving the scene of the accident. The fact that a passenger in a motor vehicle, after an accident, in which a person was killed, said to the operator "Let's get out of here and take me home before somebody comes" and instructed him to "go out through there and we will skip them and they can't find out who it was" is sufficient evidence to justify a finding that such passenger was guilty as a principal in aiding, abetting and assisting such operator in leaving the scene of an accident, contrary to the provisions of R. L., c. 118, s. 18. An abettor is defined as one who promotes or procures the commission of a crime.
INDICTMENT charging that, on May 5, 1945, one Clifford Price, of Concord, violated the provisions of R. L., c. 118, s. 19 (the so-called hit and run statute), and further charging that the present defendant, Clarence R. Derosia, on the day and year aforesaid "feloniously was present aiding abetting, and assisting the said Clifford Price the felony crime and offense aforesaid to do and commit." The defendant seasonably moved to quash the indictment. This motion was denied and the defendant excepted. Trial by jury having been waived, there was a trial by the Court, with a verdict of guilty. At the close of the State's case, the defendant moved to dismiss the indictment. This motion was denied and the defendant excepted. At the close of all the evidence, the defendant moved that the indictment be dismissed. This motion was denied and the defendant excepted. A bill of exceptions was allowed by Wheeler, J.
The statute here involved reads as follows: "19. CONDUCT AFTER ACCIDENT. Any person operating a motor vehicle, knowing that injury has been caused by him to a person or to property, shall forthwith bring his vehicle to a stop, return to the scene of the accident, give, to any proper person demanding the same, his name and address, the number of the driver's license, the registration number of the motor vehicle, and the name and address of each occupant thereof. Any person operating a motor vehicle which is in any manner involved in an accident in which any person is injured or killed, or resulting in damage to property in excess of twenty-five dollars, shall forthwith report in writing to the commissioner the facts required herewith together with a statement of the circumstances of the accident." The facts so far as they are material are stated in the opinion.
Willoughby A. Colby, County Solicitor, for the State.
Ernest L. Bell, Jr. and Harry C. Lichman (Mr. Lichman orally), for the defendant.
This indictment charges the defendant as a principal in the second degree with a violation of R. L., c. 118, s. 19, in language which has become classic to describe such an offense. See State v. M'Gregor, 41 N.H. 407, 413. The principal argument of the defendant in support of his motion to quash is that the statute "applies only to the person actually doing the thing which constituted the offense" and does not permit of any principals in the second degree or accessories, citing in support of this proposition 14 Am. Jur. Tit: Criminal Law, s. 83. "When a statute creates a new felony, whether out of what was before innocent, or was a misdemeanor, those who are present aiding one who personally commits it are principals." Bishop: Statutory Crimes (3d ed.), s. 139; 16 C. J. 119-120. As originally enacted the statute specifically provided that "failure to comply with the foregoing requirements shall constitute a felony" (Laws 1911, c. 133, s. 20), and so it is today. The common-law rule as to principals in the second degree has not been modified by statute in this state. See State v. Buzzell, 58 N.H. 257, 258, and State v. Buzzell, 59 N.H. 65, where the criminal liability of principals in the second degree is recognized.
The soundness of the above rule is recognized in the passage upon which the defendant relies, which reads as follows: "Except possibly in cases where a statute applies only to the person actually doing the thing which constitutes the offense, and not to all who are concerned in the offense, it may be stated as a general proposition of law that there may be principals in the second degree in all felonies, whether common law or statutory, even though the particular crime is of such a kind that it can be committed only by persons of a certain class." In order to determine whether an offense falls within the dubious exception here stated, it would seem necessary to inquire whether the statute in question evidences a purpose that punishment for the offense shall be limited strictly to the person actually committing the same. "Probably the most outstanding of these exceptions is that relating to a purchaser of intoxicating liquor who is not guilty of exciting [sic] aiding or abetting a sale thereof to himself," 14 Am. Jur. Tit: Criminal Law, s. 78. Other violations of liquor laws have been treated in the same way, as in Looney v. State, 156 Tenn. 337, where the statute provided that one who personally transported intoxicating liquor should be guilty of an offense. We find in the statute here involved no such indication of a legislative purpose that only the actual perpetrator of the offense shall be guilty of any crime. On the contrary, the general rule that there may be several parties to a crime which, from its nature, can be committed by only one, must be held to prevail.
Another reason urged by the defendant in support of his motion to quash is "that the indictment is defective in that it did not allege that the respondent Derosia knew that the felon was guilty. Knowledge must always be set out in the indictment. 1 Wharton's Criminal Law (11th ed.) 356." Here the defendant wholly misconceives the effect of s. 282 of Wharton's treatise. That section has to do solely with the guilt of an "accessary [accessory] after the fact to the felony of another." It has nothing to do with the liability of principals in the second degree or other accessories. The motion to quash was, therefore, properly denied.
Defendant's motions to dismiss the indictment raise the question whether there was evidence to support its allegations. We are clearly of the opinion that there was. The defendant was a passenger occupying the front seat of the automobile with Price, the driver. The car ran over and killed a girl named Corrine Walker. Price, the driver, was convicted of leaving the scene of the accident in violation of the statute. There was abundant evidence that, after the accident, Derosia said to the driver: "Let's get out of here and take me home before somebody comes." It might be found that he thus promoted or procured the commission of the crime, which constituted him an "abettor," a term which has been specifically defined as "One who promotes or procures the commission of a crime." Bouvier Law Dictionary (Cent. ed.) 26.
There was also evidence that in order to reach the defendant's home in Hooksett, the car was driven by a roundabout route through Epsom and Suncook which was a distance of some twenty-two miles, whereas the direct route to Hooksett was only nine miles. When asked, "How did you happen to go that way?" the witness Robbins (another passenger in the car) answered: "Clarence Derosia said, `Go out through there and we will skip them and they can't find out who it was.'" This evidence supports the argument of the State that Derosia "laid out the 14-mile longer and roundabout route to get away before they were caught." An aider and abettor is also defined as one who advises, counsels, procures or encourages another to commit a crime. (See definitions collected in 22 C. J. S. Tit: Criminal Law., s. 85.) There can be no doubt that the defendant might be found to be an aider and abettor within this definition of those terms. The motions to dismiss were properly denied, and the order must be,
Exceptions overruled.
All concurred.