Habeas corpus. grant the writ of habeas corpus to a prisoner detained in the state prison under sentence for a felony. 6 Ind. 1. Same. If the detention of the prisoner is illegal, it is the duty of the judge to deliver him therefrom. Ibid. Same. The detention is illegal, if by virtue of the judgment and sentence of a court which had no jurisdiction of the cause. Ibid. Same. A judge of the court of common pleas, upon the hearing on the return to a writ of habeas corpus, may, both by the R. S. 1852, and by the general principles of law, inquire into the jurisdiction of the court by whose sentence a prisoner is detained. Ibid. Form of petition for writ of habeas corpus.-In Ex parte Lawler, 28 Ind. 241, the supreme court passed upon the sufficiency of the petition. Lawler, the appellant, filed a complaint, in the Jefferson Circuit Court for a writ of habeas corpus. It was signed and verified by him, and alleges that on the 14th day of June, 1867, he was, without his consent and against his will, placed in the jail of said Jefferson county, and from thence to the present time has been confined continually therein, and restrained of his liberty, and that he still is so confined therein against his will, and restrained of his liberty, without right, by one Abner L. Shanon: that the cause or pretense of affiant's detention in said jail by said Shanon, as aforesaid, as he is informed and believes, was and is, for an alleged contempt in disobeying an order of the court of common pleas of said county, alleged to have been made on the 14th day of June, 1867, aforesaid, whereby affiant was adjudged to pay to one Harriet M. Hamel, the sum of four hundred dollars, at the following times, after the rendition of said order, to-wit: Fifty dollars in ninety days thereafter; fifty dollars in six months thereafter; fifty dollars in twelve months thereafter; fifty dollars in two years thereafter; one hundred dollars in three years thereafter, and the remaining one hundred dollars in four years thereafter; that the said Shanon, as the sheriff and jailor of said county, has the custody of the jail and the persons confined therein, and as such sheriff and custodian of said jail claims to hold and detain affiant therein, as aforesaid, by virtue of said order, as affiant believes, for said alleged contempt in failing to comply with said order of said court; that said restraint by said Shanon is illegal, in this-1. That no order of arrest or restraint was issued against the person of affiant by said court, for said alleged contempt, whereby said Shanon or other person was or is legally authorized so to re Principal and accessory. strain affiant of his liberty, as aforesaid. 2. That said Shanon has no legal process or order of any kind, nor was any issued, whereby he is legally authorized to so restrain affiant, as aforesaid, of his liberty. 3. That at the time affiant was so restrained of his liberty, as aforesaid, there was no part of said money, so adjudged to be by him paid to said Harriet M. Hamel, due, or to be paid. 4. That affiant was not, at the rendition of said order, nor is he now, in contempt of said court, in failing to comply with said order entered therein, because he says, that at the time said order was so made, he was and still is but a young man, wholly without any property, either real or personal, and wholly dependent upon his labor, from day to day, with his hands, for his maintenance and support, nor had he then, nor has he now, any moneys, rights, credits, or effects," in his possession or under his control, or in the possession or under the control of any other person for his use, nor has he, at any time, either directly or indirectly, transferred or concealed any property or thing of value, or rights, credits, moneys or effects, with intent to delay or defraud any of his creditors, or to prevent or hinder the payment or collection of said sum so adjudged to be paid to said Harriet M. Hamel; that he has no friends or relatives who are able or willing to replevy said judgment; that he has, in good faith, made every effort in his power to procure replevin bail, and to comply fully with said order of said court, but has wholly failed, as aforesaid, and by reason of his restraint in jail, he is wholly unable to pay the same by any accumulation of means by his labor, as he might and would do if given his liberty. Prayer, that a writ of habeas corpus be issued directed to said Shanon, etc. and upon the final hearing that he be discharged, etc. The court refused to grant the writ, to which Lawler excepted and appeals to this court. We think the facts stated in the complaint are sufficient, under the statute, to require the court to grant the writ, and hence that the court erred in refusing it. SEC. 2. PRINCIPAL AND ACCESSORY-AIDING AND ABETTING. In Indiana there seems to be practically no distinction between the different degrees of principals. Bicknell's Crim. Pr. 14. Several defendants, how tried. SEC. 65. Upon an indictment against several defendants, any one or more may be convicted or acquitted. 2 R. S. 388. Principal and accessory. Accessories, how tried. SEC. 66. Any person who counsels, aids, or abets in the commission of any offense, may be charged, tried, and convicted, in the same manner as if he were a principal. Ibid. Accessory after the fact. SEC. 67. An accessory, after the fact, to the commission of a felony, may be indicted, tried and punished, though the principal be neither indicted or tried. Same. Ibid. SEC. 50. Every person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or master or apprentice, to any person guilty of any felony, who shall, after the commission of such crime, harbor, conceal, or assist any such offender, with intent that he shall escape from detection or punishment, shall be deemed an accessory after the fact, and, upon conviction thereof, shall be imprisoned in the state's prison not less than one nor more than five years. 2 R. S. 447. Same. SEC. 51. Every person who shall be guilty of any crime punishable by the provisions of the last two preceding sections, may be indicted and convicted, before or after the principal offender is indicted or convicted. Ibid. Aiders and abettors. SEC. 49. Every person who shall be aiding or abetting in the commission of any crime or offense specified in this act, or who shall counsel, encourage, hire, command, or otherwise procure such crime or offense to be committed, shall suffer the same punishment and penalties which are by law prescribed for the punishment of the principal. Ibid. Who is a principal.—A person who is present aiding and abetting in the commission of a felony, is a principal, and not an accessory. He is a principal in the second degree, but may be indicted as prin Principal and accessory. cipal in the first degree, and the indictment will be sustained by proof of his being principal in the second degree. 47 Ind. 568. In misdemeanors.-There can be no accessories, as such, in misdemeanors, either before or after the fact; but those who are at all guilty are guilty in the same degree. 45 Ind.'468. Accessories outside the state.-A person who, out of the State of Indiana, becomes accessory before the fact to a felony committed within the state, can not be punished therefor, under the laws of this state. Section two of our criminal code (2 R. S. 372) must be construed to embrace only persons who, without the state, commit a crime, which, in legal contemplation, is to be deemed as having been committed within the state, under circumstances which will make the person thus committing it a principal in the crime. 19 Ind. 421. In felonies.-When an accessory to the crime of assault and battery, with intent to murder, is tried before the principal, and a verdict of guilty is rendered against him, but before judgment the principal is tried and acquitted, the accessory, on the production of the record showing the acquittal of the alleged principal, is entitled to be discharged. 44 Ind. 214. Same-Section fifty-one of the criminal code authorizes the trial and conviction of an accessory, before or after the conviction of the principal offender; but it does not authorize the conviction of the accessory after the principal has been tried and acquitted. Ibid. Aiding and abetting in manslaughter.-One may be guilty, under the statute, of aiding and abetting the crime of manslaughter. 26 Ind. 196. Same. As under an indictment for murder in the first degree the defendant may be convicted of murder in the second degree, or of manslaughter, so under an indictment for aiding and abetting the crime of murder in the first degree, the defendant may be convicted of aiding and abetting the crime of manslaughter. Ibid. Accessory-Manslaughter.-Indictment for murder, with a count for manslaughter. The defendant asked the court to instruct the jury that if they found from the evidence that the person inflicting the mortal wound upon the deceased was guilty of manslaughter only, and did not find that the defendant inflicted the mortal wound, and it was not proved beyond a reasonable doubt that he was present, aiding and assisting such person in giving the fatal blow, the defendant could not be convicted; for, in law, there could not be an accessory before the fact in a case of manslaughter. Held, that Principal and accessory. the instruction was calculated to mislead the jury in this, that it seemed to confine the aiding, etc., to the act of inflicting the fatal blow. 11 Ind. 62. Quære, whether there can be an accessory before the fact, in a case of manslaughter. Ibid. If several persons be engaged in a common illegal undertaking, and one of them commit a homicide, the others may be guilty even as principals, of whatever grade of crime it may turn out to be, without having actually assisted in inflicting the fatal blow. Ibid. Who may be charged as principal in such case.-Where one is present at the commission of a felony, though he gives no active assistance, but only remains near for the purpose of watching and giving aid if necessary, he is properly charged as a principal. 26 Ind. 495. FORM OF INDICTMENT AGAINST ACCESSORY. "STATE OF INDIANA, LAGRANGE COUNTY. } SS. "State of Indiana v. George T. Ulmer. "In the Lagrange Circuit Court, October term, A. D. 1858, adjourned to January, A. D. 1859. "The grand jurors of the State of Indiana, duly impaneled, sworn, and charged, in said court, at said term, to inquire within and for the body of said county of Lagrange, upon their oath present and charge that one Asa Crape and one William Jones, late of said county, on the 12th day of September, in the year of our Lord eighteen hundred and fifty-six, at and in the county of Lagrange, aforesaid, two horses of the value of one hundred dollars each, and one horse, commonly called a gelding, of the value of one hundred dollars, the personal goods and chattels of one Ralph Selby, then and there being found, did unlawfully and feloniously steal, take, lead, ride, and drive away." "And the said grand jurors further present and charge that George T. Ulmer, late of the county aforesaid, before the committing of the felony and larceny aforesaid, to-wit: on the tenth day of September, in the year last aforesaid, at and in the county of Lagrange aforesaid, did unlawfully and feloniously incite, move, procure, encourage, counsel, hire, and command the said Asa Crape and the said William Jones to do and commit the said felony and larceny in manner and form aforesaid. |