SAMUEL LAWRENCE, Appellant, v. REPUBLIC OF LIBERIA, Appellee.
ARGUED JANUARY 16, 1912. DECIDED JANUARY 24, 1912.
Toliver, C. J., and MeCants-Stewart, J.
1. A judgment sentencing to be hanged a party indicted as aider and abettor charged with being present assisting in the murder will be reversed unless the proof show: (1) that the homicide constituted the crime of murder; (2) preconcert between the principal and the principal in the second degree; (3) the actual presence of the principal in the second degree at the time of the commission of the crime; and (4) that the principal in the second degree rendered aid at the commission of the crime.
2. An element of every criminal offense is intent, and to constitute the crime of murder intent must be accompanied with malice aforethought.
3. Mere presence without rendering aid is not sufficient to connect a person with a crime; and the legal aid necessary to establish the criminal responsibility of a principal in the second degree must be rendered to the end of the offense.
4. The introduction of evidence not connected with the homicide, the effect of which may tend to inflame the mind of the jury against defendant, is reversible error.
Mr. Justice McCants-Stewart delivered the opinion of the court:
Murder–Appeal from Judgment. The dearest of man’s inalienable rights is life. We may deprive him of liberty with only temporary effect; we may deny him the pursuit of happiness, but such denial is not necessarily permanent; but if we take his life, it is the end of all. Courts, therefore, while never forgetting the duty to guard with jealous care the rights of litigants in general, should watch with special care every incident of a trial where human life is at stake.
The trial of appellant in the Court of Quarter Sessions and Common Pleas of Montserrado County was conducted with zeal by both sides, and the issues involved have been presented to this court with great earnestness, evidently after a careful study of the law. The fact that the homicide was committed on election day has surrounded this case with some public interest. But in this court passion is stilled, and the calm spirit of the law must prevail.
The record shows substantially the following facts : On the first Tuesday in May, 1911, the decedent (David Findly) and the appellant met at the residence of Thomas Findly, decedent’s brother, who is the principal witness for the Republic. A quarrel arose between the decedent and the appellant and both became belligerent. Decedent’s brother said, “If you people came to my house to make a row you must leave.”
The parties went out, that is, decedent and appellant, and immediately became involved in a fight. Several bystanders separated them and were leading each in an opposite direction when appellant’s brother, William Lawrence, came on the scene and forcibly pulled appellant away from those who held him saying, “let them fight.” Both brothers, appellant and William Lawrence, then attacked decedent and threw him down and began to beat him. Whereupon decedent cried out : “Are you going to let these two men kill me ?” Decedent’s brother, Thomas Findly, then interfered, as did other persons, and separated decedent from the Lawrences. Whereupon the Lawrences threw brick-bats at decedent, one of which, thrown by William Lawrence, hit appellant in the mouth. In the course of the fight decedent’s brother, Thomas Findly, took a revolver out of his pocket, according to the testimony of Hagar Carter (Record, p. 19).
Appellant and his brother, without saying anything to each other, then ran to their respective residences. Appellant started with a shotgun from his house towards decedent’s brother’s house, where decedent was; but he stumbled and fell, and Thomas Findly and certain bystanders took the gun away from him. Appellant then drew a knife and started towards the decedent who was in his brother’s house, as was testified by one of the witnesses ; or he started towards decedent’s brother, as is also testified, saying to him : “As you have secreted your brother, damn it, I will send you to hell ;” and he had the knife at decedent’s brother’s throat. Whereupon appellant’s mother and others cried out, “don’t cut him ;” and appellant said (according to his testimony) : “Thomas is my friend. I would not cut him ;” or he said (as Hagar Carter testified) : “Ah, Thomas, I know you.”
The next phase of the account of the homicide brings appellant’s brother, William Lawrence, on the scene with a rifle. Now, this was from fifteen minutes to one half hour after the arrival of appellant with his shotgun at the place of the homicide. David Findly, the decedent’s brother, and the chief witness for the Republic, testified that it was one half hour (Record, p. 8). At that time appellant was in the back yard doing nothing as Hagar Carter testified (Record, p. 19). She was asked: “Who got to Thomas Findly’s house first, you or the prisoner (meaning the appellant at this bar) on that day ?” She answered : “the prisoner.” She was further asked: “When you got there what did you meet the prisoner doing?” She answered : “Standing up.” She was also asked : “Was he standing up quarrelling or fighting, or was he standing up peaceable and quiet?” She answered : “He was standing up quiet and peaceable.” Evidence was elicited on the cross-examination to the effect, that when the gun was fired, prisoner was still holding Thomas Findly.
It also appears that at the time of the homicide, which took place in the front yard, appellant was in the back yard and could not see what was going on in the front yard (Record, p. 20).
The record does not show whether or not during the half hour intervening between the arrival of the appellant with his slot gun and the arrival of appellant’s brother with his rifle, the persons present in the yard were trying to persuade appellant to leave decedent’s brother’s premises. The evidence simply is that at the time the murder was committed appellant was standing up in the back yard quiet and peaceable, although this evidence was somewhat contradictory. But even in this court, appellant is entitled to the benefit of any reasonable doubt which may arise from the record; and it does seem improbable that appellant could have occupied a half hour in trying to commit a felony without doing such acts as all of the witnesses would have been able to testify to with clearness and positiveness.
Appellant’s brother, William Lawrence, after this lapse of from a quarter of an hour to a half hour appeared at the front of the house, and there was the report of a gun. At the report of the gun decedent cried out: “Oh, Thomas I am dead;” whereupon decedent’s brother, Thomas Findly, said: “Sam (meaning appellant) leave me. Don’t you see your brother has killed my brother ?” Appellant replied, according to the evidence of Thomas Findly (Record, p. 9) : “Damn it, if he has killed him, let them hang William. What in the hell have I to do with it ?” Or appellant said, as Hagar Carter testified, “Let them put him (meaning his brother William Lawrence) in jail.”
The record does not show that any words passed between the two Lawrences at any time from the beginning of the fight to the homicide. On the contrary, the undisputed evidence is, that no words passed between appellant and his brother at any time during the affair; and there is no evidence that appellant committed any act by way of rendering any aid or assistance except as the foregoing digest of the record may be taken to ‘show.
Appellant’s brother, William Lawrence, was indicted for murder, and was convicted and hanged.
Appellant was indicted as aider and abettor charged with being present assisting in the murder. Appellant was convicted and sentenced to be hanged; and his case is now before this court on appeal.
In order to sustain the judgment in this ease, the record must show that the following facts were proved, namely : (1) that the homicide constituted the crime of murder; (2) preconcert between the principal and the principal in the second degree ; (3) the actual presence of the principal in the second degree at the time of the commission of the crime; and (4) that the principal in the second degree rendered aid to the principal to the end of the commission of the crime.
An essential element of every criminal offense is intent. A crime does not arise from the mere fact, for example, that a person administered poisoned, wine to, or shot another, if in the first case the person did not know the wine was poisoned (Motherly v. Corn., 19 S. W. Rep. 977) ; or if in the other case the person shot while walking in his sleep (State v. Lewis, 136 Mo. 84). And to constitute the crime of murder, intent must be accompanied by malice aforethought. Our statutory definition of the crime of murder is: “Murder is the killing of any person whatever by any person of sound mind and discretion with malice aforethought and without legal excuse.”
Now the record does not show with sufficient clearness the existence of either intent or malice on the part of appellant in connection with the crime alleged. He and decedent had been friends; had visited each other, and on the day of the crime, which was the day of the national election and one of general and special excitement, the appellant and decedent became suddenly involved in an unfortunate quarrel, which ended in a fight finally terminating in the killing of decedent by appellant’s brother. At the time of the killing, the undisputed facts are that appellant was not engaged in any altercation with decedent; but, if he was involved in any trouble at all at the time when the offense was committed, appellant was engaged in controversy with decedent’s brother, Thomas Findly.
The record is defective at several material points, arising from the unaccountable rulings of the court as well as the omission of counsel to pursue material lines of inquiry. But as this record must be read in appellant’s favor, where it is silent or uncertain, it must be held that the proof is to the effect, that, at the time of the homicide in the front yard, appellant was standing “quiet and peaceable” in the back yard, speaking no word to his brother, who committed the crime, and rendering him no aid or assistance, but being where he could not see the awful tragedy, which was announced by the report of the rifle; especially as it appears that, in addition to the above mentioned circumstances, he had been upwards of a half hour on the scene of the murder and seems to have turned his quarrel from decedent to decedent’s brother. He testified that he got his gun because decedent’s brother drew a revolver.
It is impossible for us to find from the record that there was any preconcert between appellant and the actual perpetrator of the crime. Counsel for the Republic earnestly argued that preconcert should be presumed from the fact that both appellant and his brother left the scene of the homicide at the same time and went to their residences for their guns. But this, in our opinion, is not a sufficient foundation for such a presumption; and it is doubtful if such a presumption could prevail against appellant even if it naturally and necessarily arose.
There must be stronger proof of preconcert than is found any where in the record. The proof should be positive, or so clearly and convincingly circumstantial as to afford no other conclusion. Preconcert will not be lightly presumed. And where no preconcert or conspiracy is shown to have existed between the actual perpetrator of a criminal homicide and one charged with aiding and abetting, it is essential to the guilt of the latter that he not only should have been present when the killing was done, but should have actually participated in the crime, either by doing some overt act or by affording encouragement or comfort to the actual perpetrator of the offense. Mere passive presence at the scene of the crime without preconcert or participation by word or deed is not sufficient to constitute criminal responsibility for the homicide. (21 Amer. & Eng. Enc. Law, 115 [2].)
In Hicks v. U. S. (150 U. S. 442) the Government sought to hold a judgment against a principal in the second degree; but it was reversed. The facts upon which the law was based may be briefly stated as follows :
At the trial, the Government’s evidence clearly disclosed that John Hicks, the accused, did not, as charged in the indictment, shoot the deceased, nor take any part in the physical struggle. To secure a conviction it hence became necessary to claim that the evidence showed such participation in the felonious shooting -of the deceased as to make the accused an accessory, or that he so acted in aiding and abetting Rowe as to make him (Hicks) guilty as a principal. The prosecution relied on evidence tending to show that Rowe and Hicks cooperated in inducing Colvard to leave the house, where they and a number of others had passed the night in a drunken dance, and to accompany them up the road to the spot where the shooting took place. Evidence was likewise given by two or three men, who, from a house about one hundred yards distant, were eyewitnesses of the occurrence, that Rowe twice raised his gun and aimed at Colvard; that Hicks was heard to laugh on both occasions; that Rowe thereupon withdrew his gun; that Hicks pulled off his hat and striking his horse with it said to Colvard: “Pull off your hat and die like a man ;” that thereupon Rowe raised his gun a third time and fired at Colvard, whose horse then ran some distance before Colvard fell. As the horse ran, Rowe fired a second time. When Colvard’s body was subsequently examined, it was found that the first bullet had passed through his chest inflicting a fatal wound. Rowe and Hicks then rode off together.
Upon these facts, the judge charged the jury, that when the shooting which produced the murder was done by another person, that if the accused was present for the purpose of aiding or abetting or advising or encouraging the shooting, but did not do it because it was not necessary, the accused was guilty. The Supreme Court held that such a charge was erroneous, if there was no evidence of any previous conspiracy or arrangement between the accused and the other person who actually did the shooting. Mere presence without rendering aid is not sufficient to connect a person with a crime.
In the Tobah case (Lib. Ann. Series No. 2, p. 30), which was cited by counsel for the appellee with the contention that this case should control the decision in the case at bar, the Chief Justice, who delivered the opinion of the court, held : “The appellants were all present in the boat and put forth no effort to prevent the commission of the crime, but on the contrary aided and abetted in its execution.” Now, can it be successfully contended that there is any evidence in the record bringing the case at bar within this ruling ? If there is, it has escaped our careful scrutiny.
In the light, therefore, of these principles of law with reference to preconcert and the kind of aid and assistance, which the principal in the second degree must render the principal, is there anything in the record at bar bringing this case within them? We think not, and we have given the record the most careful examination and review. Proof of any mutual understanding by word or act is entirely wanting; proof of any word of encouragement or assistance at the time of the murder is entirely wanting; proof of the actual presence of appellant, in the sense that he was where he could see or hear what was going on at the time of the murder, is entirely wanting; indeed, the proof seems to be that he was out of sight of the homicide and out of hearing distance at the time of its commission, judging from the evidence of John T. Sharp, who testified, that he did not hear appellant’s remark immediately following the report of the gun, as he was in the front yard and appellant was in the back yard (Record, p. 16).
Our statute makes actual presence necessary to hold an Rider and abettor for a crime or misdemeanor; the exact language being “all persons actually present aiding and abetting any crime or misdemeanor” etc.
The legal aid necessary to establish the criminal responsibility of a principal in the second degree must be rendered to the end of the offense. If a person, engaged with others in a plan to kill, relinquish his purpose and separate himself from the participants before the consummation of the crime, he can not be convicted of any grade of homicide. (21 Amer. & Eng. Enc. Law, 126 [6], and
cased cited.)
Appellant cannot be convicted on the general principle, that as he and his brother, the actual perpetrator of the crime, were at one point in this affair engaged in assaulting decedent, that, therefore, appellant is responsible equally with his brother for the alleged murder. The fight began between appellant and decedent. Appellant’s brother entered it without any word from appellant, as far as the record shows. In the case of Woolwea ver v. State (50 Ohio St. 277), the principle was held, that where a kinsman interferes of his own volition in a fight for the purpose of aiding his relative and kills the antagonist, the relative cannot be held responsible for the homicide.
We are of the opinion that this principle must be applied to the case at bar, unless there are facts against appellant which were not brought out on the trial and are, therefore, not of record.
Every person accused of crime is presumed’ to be innocent, and he is entitled to a fair and impartial trial. The exceptions taken by appellant’s counsel and argued here show errors materially prejudicial to the rights of appellant on the trial. It was error to allow the witness Thomas Findly to answer the question : “Did either of the Lawrences, Samuel or William, give the other any assistance in the fight that took place before the shooting ?” as it was a leading question, and further as the question elicited an opinion, and the matter then under consideration was not one requiring expert testimony and opinion. (I Greenleaf Ev., Sec. Ed., 434, 441 and 441 b; McCarthy v. TVeeks, Lib. Ann. Series No. 2, p. 12.)
It was also error to admit in evidence appellant’s gun and knife, as neither was connected in any way with the homicide. The probable effect was to inflame the minds of the jury against the defendant on trial before them, and thus inflict an injustice upon him.
The judgment of the court below is, therefore, reversed and the case remanded to said court with direction to grant a new trial.
L. A. Grimes, for appellant.
S. A. Ross, Attorney General (T. W. Haynes, of counsel), for appellee.