« AnteriorContinuar »
the United States which prevents a State from property which in value exceeds the aggretaxing personal property employed in inter gate of the separate pieces of tangible propstate commerce, like other personal property erty, and should be taxed by the States. The witbin its jurisdiction.20
basis of taxation should be determined by the Capital Stock.- What is capital stock is value of the entire capital stock of the trust, answered differently. But where a State and such other evidence and rules as will encomprehends all property for taxation pur able the State to arrive at the true value of poses, capital stock includes the entire prop the entire property of the trust within any of erty, real and personal, tangible and intangi- the States, in the proportion which the same ble, and assets on hand, as well as franchises bears to the entire property of the trust; and of corporations and trusts so-called. When such value includes the proportionate part of thus defined the value is an entirety, the the value resulting from the combination of tangible property may be taken from the total the means by which the business is carried value, and the balance will be the value of If the intangible property was thus the intangible property subject to taxation. 21 taxed, it would bring to light the real value And when intangible property is taxed, it is of the capital stock of trusts, and thereby be not an additional tax upon the same property, à means of publishing to the world the fictibut upon intangible property which has not tious over-capitalization of trusts, and place been taxed as tangible property. 22 And in them on a basis founded upon the real value case of a corporation whose property is scat of their entire property. The federal constitered throughout different States, by means tution places no restrictions upon any State of which business is transacted in each, the to abridge its right to tax at their full value intangible property follows the tangible, and all the instrumentalities used for commerce is situated wherever the tangible property is
within its jurisdiction. And there is nothing located, and where its work is done in the in the limitations of the constitution which several States.23 That the trusts are over
restrains a State from taking intangible propcapitalized is obvious, and their tangible erty at its real value existing within its terri. property cannot be more than one-tenth of tory.24 To illustrate this principle take an the whole value. But tangible and intangible express company. Thus, where an express property should be taxed. It matters not of company's tangible property is worth what intangible property consists, whether $4,000,000, and its intangible property privileges, corporate franchises, contracts or $12,000,000, its valuation for taxing purposes obligations, it should be taxed. It is enough is $16,000,000, to be prorated among the that the property of the trusts, though in States where the express company has tangitangible, exists, which has value and pro ble property in use, a unity of use for the duces income, and passes current in the mar convenience of pecuniary profit.25 The same kets of the world. When the tangible prop system may be constitutionally applied to erty of the trust is scattered through different trusts. States, by means of which its business is Conclusion.-1. All acts, whether by legistransacted in each State, the situs is where lation of States, combination of corporathe tangible property is located, and not tions, or by contracts of private individuals, where the home office of business is. Sepa which interfered directly with interstate comrate articles of tangible property are joined merce, can be regulated under the Act of together by unity of ownership and by unity July 2, 1890, so there is no need of an amendof use, thereby developing an intangible
2. All combinations within a State 20 Western Union Tel. Co. v. Massachusetts, 125 U.
which form a monopoly in restraint of trade S. 530; Adams Express Co.v. Ohio, 166 U. S. 185; Wal may be regulated by the anti-trust acts of the worth v. Harris, 129 U. S. 355; Adams Express Co. v. several States. 3. By a constitutional taxaKentucky, 166 U. S. 171; Postal Telegraph Co. v. Adams, 165 U. S. 688; Pittsburg, etc. R. R. Co. v.
tion of intangible property, the interstate Backus, 154 U. S. 421; Pullman's Car Co. v. Pennsyl trusts can be compelled to divulge the real Vapia, 141 U. S. 18; Western Union Tel. Co. v. Tag. value of their property. gart, 163 U. 3. 1. a1 Henderson Bridge Co. v. Commonwealth, 99 Ky.
Bloomington, Ill. DARIUS H. PINGREY. 623.
24 Adams Express Co. v. Ohio, 165 U. S. 194. 22 Adams Express Co. v. Kentucky, 166 U. S. 171. 25 Adams Express Co. y. Ohio, 165 U. S. 194; State v. 23 Adams Express Co. v. Ohio, 166 U. S. 185.
Jones, 51 Ohio St. 492.
CRIMINAL LAW – PRINCIPAL AND AC. Whart. Cr. Law, $ 117; U. S. v. Libby, 1 Woodb. CESSORY.
& M. 221, Fed. Cas. No. 15,597. In 1 McLean,
Cr. Law, $ 118, it is said: “The only question in STRAIT v. STATE.
the case of decoys is as to whether defendant has
committed a criminal act. Of course, if he has Supreme Court of Mississippi, April 20, 1900. joined with one who pretends to be a confederate,
but in reality is acting as a detective, and thereWhere prosecutors had reason to believe their of.
fore has no criminal intent, he will not be crimfice had been entered by defendant, and hired a de.
inally liable for acts done by the detective, al. tective to investigate the matter, and, under the pretense of getting a bundle he had left, the detective
though present to aid and assist; for, while such borrowed defendant's key, and entered the office, ac.
presence and aid would make him a confederate companied by the defendant, wben they were im.
in the case of a real crime, it cannot render him mediately arrested, a conviction of the defendant for guilty where no real crime is committed. Thus, burglary was improper, because his principal was not it is held that if, in burglary, an officer or a seryguilty, since he entered the office under the license of ant, under the instructions of the owner, admits the prosecutors.
the intended burglar to the house, pretending
to be in collusion with bim, there is no burglary TERRAL, J.: Joshua Strait, a colored boy, was
committed.” Maule, J., so ruled in Reg. v. indicted in the circuit court of Lauderdale county
Johnson, Car. & M. 218, 41 E. C. L. 123. Ten of of burglary in breaking and entering the law of
the twelve judges of the exchequer chamber so fice of Ethridge & McBeath with intent to steal.
ruled in Dannelly's case, 1 Russ. & R. 310. And Ethridge & McBeath were attorneys at law at
this is the American doctrine. Love v. People, Meridian, Miss., and, baving a belief that their 160 III. 501, 43 N. E. Rep. 710, 32 L. R. A. 139; office bad been often entered by some person, and
People v. McCord. 76 Mich. 200, 205, 42 N. W. having a suspicion that the defendant was such Rep. 1106; Connor v. People (Colo. Sup.), 33 person, one or both of the prosecutors requested Pac. Rep. 159, 25 L. R. A. 341. The defendant Green Morton to trace up the matter. Strait was
was let into the office of the owners by a decoy the office boy at a neighboring office, and had the
operating at their instance, and, however reprekeys thereto of his master. Green Morton, in hensible the act be motally, he is not guilty of laying a snare for the defendant, pretended to
burglary. His conviction was wrongful. The him that he had left a bundle in the office of Eth
verdict and judgment are set aside and reversed; ridge & McBeath, and received from Strait the
and a new trial is awarded. key used by him in his employment, and with it opened the office of Ethridge & McBeath, and entered the same, and the defendant, Strait, also
NOTE.-Recent Decisions on the Law Pertaining to entered with him, and, being immediately set
Principal and Accessory in Criminal Cases.--A per
son cannot be convicted as a principal for aiding the npon, they were arrested, and, the defendant be.
person who actually committed the crime, unless he ing indicted and convicted of burglary, he ap is in a position to render, if necessary, some personal peals. Green Morton, in endeavoring to entrap assistance, and desired to have the crime committed. the defendant, and in getting from bim the key State v. Valwell, 66 Vt. 558, 29 Atl. Rep. 1018. Where with wbich he opened the office of Ethridge & one is accused of aiding and encouraging another in McBeath, and in leading the defendant into said
the commission of a crime, it need not be shown that office, was acting at the instance of the prosecu
the crime was committed in pursuance of an undertors, either as a decoy or as a detective, and in
standing between them. Howard v. Commonwealth
(Ky.), 27 S. W. Rep. 854. A person present at the either case he was operating under the license of
commission of a mur'ler, and aiding, either by keepthe owners, and could not have been guilty of an
ing guard, or by counseling or encouraging the comunlawful act; and, because Morton was not guilty mission of the crime, is equally guilty with the perof burglary, the defendant could not be guilty of son who delivers the mortal blow. People v. Repke burglary in entering the office at the instance and (Mich.), 61 N. W. Rep. 861. Where three persons by the act of Morton. Green Morton himself form a design to kill a person, and one of them pro. opened the door of the office of Ethridge & Mc
vokes a difficulty with him to furnish a pretext for Beath, and, unless he is guilty of burglary as the
killing him, he is equally guilty with the other two
who inflict the wounds. State v. Paxton (Mo.), 39 S. principal felon, the defendant cannot be guilty of
W. Rep. 705. In a trial for murder, an instruction crime. At common law the actual doer of an il
that if defendant was present for the purpose of act. legal act amounting to felony was called a princi- ual assistance as the circumstance might demand, and pal in the first degree, and another being with the principal was encouraged to take the life of the him to aid or assist in the commission of the act deceased by the presence of defendant, then defendis denominated a principal in the second degree, ant aided and abetted in the killing of deceased, is and a principal in the second degree could only properly given. Singleton v. State (Ala.), 17 South. be guilty of the crime committed by the principal Rep. 327. It appearing that defendant and w were
horse thieves, who had determined to resist arrest to in the first degree. It is plain that Morton is not
the death, and that in arresting them deceased was guilty of burglary, because he was acting at the
shot, it is immaterial that W, and not defendant, fired instance of the prosecutors, and he was expected
the shot. English v. State (Tex. Cr. App.), 30 S. W. by the prosecutors to use his own judgment in Rep. 233. When two persons unite in bringing about luring the defendant into a trap to be set for him. a quarrel with a third person, which results in one of
them assaulting him, each of the two is a principal. cient to show that defendant aided in the robbery, so Williamson v. State (Tex, Cr. App.), 29 S. W. Rep. as to warrant his conviction therefor. State v. O'Keefe 470. An accessory before the fact to a felony should (Nev.), 43 Pac. Rep. 918. In a prosecution for as. be prosecuted as a principal. State v. Golden (Wash.), sault with a deadly weapon upon J, an instruction is 39 Pac. Rep. 646. All persons who, being present, as. proper that if defendants L and M were present at sist or abet in the commission of murder, may be J's house, telling a third defendant what to say to prosecuted as principals. Hill v. State, 42 Neb. 503, him, to call him a mill burner, etc., they would be 60 N. W. Rep. 916. Under an information charging guilty. State v. Jones (N. Car.), 24 S. E. Rep. 493. defendant with procuring, aiding, and abetting an Where a murder was committed by means of an ex. other to commit an assault with intent to wound, de plosion of dynamite, one who made the preparations fendant may be convicted of assault and battery as by laying the wires and placing the battery and doing principal. Wagner v. State, 43 Neb. 1, 61 N. W. Rep. all the preliminary work, and in whose presence and 85. Under Comp. Laws, sec. 7260, abolishing the dis. with whose knowledge the current was set in motion tinction between principals and accessories before by another, is guilty. Commonwealth v. Miller (0. the fact, it is proper to charge as principal one who & T.), 8 Kulp, 85. An instruction that if a man pamed counsels and directs a murder. State v. Kent (N. C planned a burglary, and the defendant and another Dak.), 62 N. W. Rep. 631. Under Cr. Code, div. 2, agreed to assist therein, and all were present and sec. 2 (Rev. St. ch. 38, sec. 274), which declares that went into the house in furtherance of the plan, each an accessory before the fact "shall be considered as would be guilty of such burglary, is properly given principal and punished accordingly," an indictment where defendant has confessed to the facts therein wbich cbarges that one man did acts which constitute stated, and the burglary has been proved aliunde. murder, and that the defendant then and there felo. Attaway v. State (Tex. Cr. App.), 34 S. W. Rep. 112. Diously incited him to commit such murder, without Where parties act together in the commission of an alleging that defendant committed the murder, is bad. offense, in pursuance of a common intent, and in pur Fixmer v. People, 153 Ill. 123, 38 N. E. Rep. 667. One suance of a previously formed design, they are all who had agreed with others to commit a criminal act, alike guilty, whether all were actually present when who is not present at the time of its commission, can. the offense was committed, or not. McDonald v. not be considered a principal, unless he was, when State, 34 Tex. Cr. Rep. 556, 35 S. W. Rep. 286. A per. the act was committed, performing some act in fur. son present at the time an assault was made upon therance of the common design. Tittle v. State (Tex. prosecutor by a third person, but who, by neither act, Cr. App.), 31 S. W. Rep. 677. Where two or more word, nor gesture, aided the assailant in the assault, persons are charged in an information with premedi. cannot be convicted of the assault. Schribe v. State tated murder by shooting, and the evidence shows (Tex. Cr. App.), 35 S. W. Rep. 375. An indictment that the one on trial did not do the killing, but abetted for aiding an officer of a bank in making false entrie, the crime, the information will be sufficient as to him. etc., is not defective because it charges the principal State v. White, 10 Wash. 611, 39 Pac. Rep. 160. with having madethe entries with intent to defraud the Where, by the same indictment, two persons are bank, an also with intent to deceive examining agents, charged with murder in the first degree, the convic. whereas it merely charges the aider with an intent to tion of one of murder in the second degree does not deceive such agents; for it is immaterial that the probibit the trial of the other for the crime charged. principal may bave had several intents, if both prin. State v. Lee (Iowa), 60 N. W. Rep. 119. One who cipal and aider were actuated by the criminal intent counsels and procures another to commit a murder to deceive such agents. Coffin v. United States, 162 may be convicted of a higher degree than the evi. U. S. 664, 16 Sup. Ct. Rep. 913. Const, art. 1, sec. 11, dence shows the other to be guilty of. State v. Gray giving an accused the right to demand the nature and (Kan.), 39 Pac. 'Rep. 1050. As there are no accesso cause of the accusation against him, does not render ries in misdemeanors, those whose conduct would con unconstitutional Hill's Ann. Laws, sec. 2011, abolish. stitute them accessories before the fact, if the prin. ing the distinction between principal and accessory cipal offense were a felony, are, if it be a misdemeanor, before the fact, nor prevent accused who procured guilty as principals. Wagner v. State, 43 Neb. 1, 61 the commission of a homicide, but who was not presN. W. Rep. 85. On a prosecution for assault, where ent, from being convicted on an indictment merely there is evidence that defendant was an accessory, it charging him with the commission of the overt act. is error to instruct that, if defendant was present and State v. Steeves (Oreg.), 43 Pac. Rep. 947. Under “ready” to aid or abet the principal in the assault, he Rev. St. 1889, sec. 3944, providing that every person is guilty as principal. Elmore v. State (Ala.), 20 who shall be a principal in the second degree in the South. Rep. 323. On a prosecution for assault with commission of any felony, or who shall be an acces. intent to kill, where there is evidence that defendant sory before the fact, shall, on conviction, be adjudged was an accessory, an instruction that one is guilty as guilty of the offense in the same degree as a princi. principal of an offense committed solely by another, pal in the first degree, the indictment may either al. when he conspired with the other to commit it, and lege the matter according to the fact, or charge the that the conspiracy need not be shown by positive, principal and the accessory as principals in the first but may be shown by circumstantial, evidence, is degree. State v. Schuchmann (Mo. Sup.), 33 S. W. proper. Elmore v. State (Ala.), 20 South. Rep. 323. A Rep. 35, 34 S. W. Rep. 842. Though the distinctions conviction under an indictment charging defendant between accessories before the fact and principals are with having performed an operatin on which prouced abolished, an indictment first setting out the guilt of an abortion was sustained by evidence that defendant the principal offender, and then charging that, "be. procured another to actually perform the operation fore the commission of said felony, defendant did" in bis presence, while he watched for intruders, to "counsel, aid, incite, and procure," said principal to prevent interruption. Dixon v. State, 46 Neb. 298, 64 commit the felony, is unobjectionable. State v. N. W. Rep. 961. That defendant, with other boys, Gleim, 17 Mont. 17, 41 Pac. Rep. 998. Under Rev. St. invaded prosecutor's premises, drove prosecutor's 1874, p. 393, sec. 274, making one who "stands by, and companion to the rear of the house, and detained him aids, abets, or assists" in the perpetration of a crime, there while two others robbed prosecutor, is suffi. an accessory, and punisbable as a principal, the mere
presence of a defendant when a homicide was como mitted by another, or even his consent thereto, will not authorize his conviction as a principal, where it is not shown that he said anything or did any act to aid, abet, or assist in its commission. Jones v. Peo. ple, 166 III. 264, 46 N. E. Rep. 723. Where four de. fendants were charged with assault, an instruction that if any of defendants were present at the time of the assault, for the purpose of giving aid if necessary, they were guilty, was not error. Anderson v. State (Ind. Sup.), 46 N. E. Rep. 901. An aider and abettor of a burglary, though he does not come within 40 feet of the house, is equally guilty with one who enters. State v. Pearson, 119 N. Car. 871, 26 S. E. Rep. 117. Where two persons are present, who are acting in concert for an unlawful purpose, and a person is killed by one of them, in pursuance of the common desigos, it matters not which one tires the fatal shot. State v. Can. non (S. Car.), 27 S. E. Rep. 526. The evidence showed that defendant and three others were all engaged in the robbery; and that, while two others did the work, defendant and his companion were at hand, ready to give assistance, should occasion require it. Held, that it was not error to charge that all persons who act together in committing an offense are principals; that they may act together, whether bodily present or not, if they act under an agreement to commit an of. fense, and it was committed in pursuance of a common intent and previously formed design, each party performing his part, which was necessary to the com. pletion of the offense. Colter v. State (Tex. Cr. App.), 39 S. W. Rep. 576. Under Code, sec. 4314, which ab. rogates the distinction between an accessory before the fact and a principal, making both principals, it is error to charge that a defendant who did not actually commit the act constituting the crime, which was committed by another is guilty, if at all, of whatever offense the evidence shows such other to have committed. State v. Smith (Iowa), 69 N. W. Rep. 269. A person who conspires to commit robbery is guilty of a murder resulting from the attempted perpetration of the crime, though the killing was done in the ab. sence of himself and his co conspirators, by persons employed by the latter to effect the robbery. Isaacs v. State (Tex. Cr. App.), 38 S. W. Rep. 40. One of several persons who enter into an agreement to steal horses generally cannot be convicted as a principal in the theft of a horse taken by other parties to the agreement, he having refused to have anything to do with it. Sessions v. State (Tex. Cr. App.), 38 S. W. Rep. 605. Where two persons are indicted for mur. der, one as principal in the first degree, and the other as principal in the second degree, the latter may be convicted of murder, although the former has been convicted of voluntary manslaughter only. Bruce v. State (Ga.), 25 S. E. Rep. 760. One charged as a pria. cipal in a felony may be convicted on evidence of a conspiracy to commit the crime, and an actual par. ticipation in the act constituting the crime. Reed v. State (Iod. Sup.), 46 N. E. Rep. 135. Since Cr. Code, sec. 1, relating to accessories before the fact, merely declares the common law, one charged as accessory before the fact cannot be convicted as a principal. Casey v. State, 19 Neb. 403, 68 N. W. Rep. 613. Under Rev. St, sec. 6804, providing that one who aids and abets the commission of an offense may be "prosecuted" as if he were a principal offender, one aiding and abetting in the commission of a homicide may be indicted with the principal. Jones v. State, 7 Ohio St. Dec. 305, 14 Obio Cir. Ct. Rep. 35. Where, in a prosecution for sale of a lottery
ticket, it appears that defendant kept a place where the sale of tickets was advertised, and that at the time of the sale he and his brother were waiting on the pur. chaser, it is immaterial whether defendant personally sold the ticket, since Pen. Code, art. 75, provides that when an offense is actually committed by one or more persons, and others are present, knowing of the un. lawful intent, and assist those actually engaged in the unlawful act, such persons are principal offenders. Kaufman v. State (Tex. Cr. App.), 38 S. W. Rep. 771. Where four persons, without any common understanding that they would do whatever might be nec. essary to avoid arrest, resisted an officer, and one of their number shot bim, but not fatally, all of them were not guilty of an assault with intent to murder, eyen though the one who fired the shot did so with intent to kill. State v. Taylor (Vt.), 39 Atl. Rep. 447. Mansf. Dig. sec. 1505, defining an accessory as one “who stands by, aids, abets, or assists" in the perpe. tration of a crime, one who is thus indicted as an accessory is charged as a principal in the second degree under the common law, and proof that his principal in the first degree was convicted is irrelevant and immaterial. Williams v. United States (Ind. Ter.), 45 S. W. Rep. 116. If defendant aided and abetied in the killing, he was a principal in the second degree, and not an accessory. Tudor v. Commonwealth (Ky.), 43 S. W. Rep. 187. One who bribes a duly supbænaed witness to absent himself from the trial cannot be convicted, under Gen. St. sec. 6310, which makes the abettor of a crime punishable as a principal, taken in connection with section 6386, which makes it a felony for a witness to receive a bribe for absenting himselt from a trial. State v. Sargent (Minn.), 73 N. W. Rep. 626. One who was present, aiding, abetting, and assisting another wbile he committed an assault, though not actively participating, is particeps criminis. State v. Klein (Wash.), 53 Pac. Rep. 361. Exclamation of C to G to "catch him and kill him,” referring to B, with whom C was having some words, could have no effect to establish an agreement between C and G to effect an unlawful purpose, so as to make C answer. able for death of w, killed by G striking him with a club while C and B were fighting. State v. May, 142 Mo. 135, 43 S. W. Rep. 637. An information which charges one with embezzlement by aiding and abet. ting another in the commission of such offense does not charge defendant as an accessory before the fact. State v. Rowe (Iowa), 73 N. W. Rep. 833, Code 1873, sec. 3908, provides that public officers who shall con. vert to their own use money intrusted to them shall be guilty of embezzlement. Section 4314 abrogates the distinction between an accessory before the fact and a principal, and all persons concerned in the com. mission of a public offense must be indicted and punished as principals. Held, that one who advises a county treasurer to commit the crime of embezzlement may be a principal, as having aided and abetted in its commission, though he would not bave been a principal if he had taken the money. State v. Rowe (Iowa), 73 N. W. Rep. 833. Pen. Code 1895, art. 86, defines an accessory as one who, knowing that an offense has been committed, conceals the offender, or gives bim any other aid, in order that be may evade arrest or trial, or the execution of his sentence. Held, that the person charged as accessory must have given some personal help to the offender; and the naked fact that one received stolen property, knowing it had been stolen, would not constitute the receiver an ac cessory in the burglary. Street v. State (Tex. Cr. App.), 45 S. W. Rep. 577. The death of the principal before indictment is no obstacle to the prosecution.
and punishment of one charged with aiding and abet. ting an officer, clerk, or agent of a national bank to abstract, misapply, or embezzle the funds thereof, in violation of Rev. St. sec. 5209, which makes such of. fense a misdemeanor. Gallot v. United States (U. S. C. C. of App.), 87 Fed. Rep. 446. Before one can be found guilty as accessory before the fact, the guilt of the principal must be established, and, for the pur. pose of establishing the principal's guilt, confessions made by him are competent in the trial of one accused as accessory. Brooks v. State (Ga.), 29 S. E. Rep. 485. Under Hill's Anp. Laws, secs. 1289, 2011, abrogating the distinction between principals and accessories, and providing that persons, whether committing a crime or aiding or abetting in its commission, shall be indicted and tried as principals, the conviction of one person charged as principal in the commission of a crime does not operate as an acquittal of another separately charged as principal in the commission of the same crime. State v. Branton (Oreg.), 56 Pac. Rep. 267. A charge that defendants are principals if they acted together in committing an offense accord. ing to a previously formed design is erroneous; the statutes requiring principals to be present or to do some act in furtherance of the common design at the time of the commission of the offense. Wright v. State (Tex. Cr. App.), 48 S. W. Rep. 191. Under Pen. Code, sec. 29, providing that a person concerned in the commission of a crime, whether he directly commits the act or aids and abets in it, and whether pres. ent or absent, and a person who directly or indirectly counsels or procures another to commit a crime, is a principal, actual presence at the commission of a crime is not necessary to constitute one a principal. People v. Winant, 53 N. Y. S. 695, 24 Misc. Rep. 361. To be guilty as a principal, a person must both aid and abet, under Pen. Code, sec. 971, declaring guilty as principals all persons who aid and abet in the commission of a crime. People v. Compton (Cal.), 56 Pac. Rep. 44. The effect of Cr. Code, sec. 1, which provides that one who shall aid, abet, or procure any other person to commit a felony shall be punished in the same manner "as the persons who committed the felony," is to make such aiding and abetting a sub. stantive and independent crime. Oerter v. State (Neb.), 77 N. W. Rep. 367. A charge that if defend. ant and another searched for cattle pursuant to a conspiracy to steal them, and the other found them, and drove them to where defendant was, and they then took them together, then the aet of such other in tak: ing the cattle would be defendant's act, is erroneous; Pen. Code 1895, arts. 74.78, requiring a person to do some act to aid or encourage another in the commis. sion of an offense at the time it is committed, in order to make him a principal. Bell v. State (Tex. Cr. App.), 47 S. W. Rep. 1010. Under Code 1873, sec. 4314, abolishing the distinction between principals and accessories before the fact, and making aiders and abettors guilty as principals, a conviction of murder as a principal is sustained by proof that the killing was by a third person, in pursuance of a conspiracy with accused. State v. Smith (Iowa), 77 N. W. Rep. 499.
inem, hardly worthy of the forum. To the philo. sophic mind, the doctrine of stare decisis is a potent safeguard against the vagaries of human nature. It every judge were at full liberty to decide according to his views at the time, regardless of what went be. fore, a boil on the neck or the pleasant sensations of a good dinner would control. The personal equation is powerful, even on the bench. The conservatism of the law is the most vital element of social order. It is far more important to the community to have the law settled, even wrongly, than to have uncertainty which breeds confusion and brings the law into contempt. Evils that can be located and measured can be cured by legislation; and even courts, when fully satisfied that a precedent is evil or has become inapplicable through change of conditions, do not besi. tate to depart from it. Since your correspondent cites the Supreme Court of the United States as up. holding precedents discarded in other countries, it may be well for him to consider the action of that court in two later instances. In the sugar duty case, the court uphold, upon the doctrine of stare decisis, what it regarded as a faulty construction of the rey. enue law, because this construction had been adopted by the public and the administering officers, and had become so far settled, generally understood and acquiesced in, that to disturb it would bring greater evils--a case where the remedy was perhaps worse than the disease. In the matter of patent reissues, coming up the same term, the same court did not hesitate to discard the doctrine of stare decisis and overturn the construction of the statute settled by its own and the adjudications of federal courts for fifty years previously. These instances at least show that the supreme court is not wedded to the doctrine of stare decisis, but rather indicate a tendency toward the evils wbich a more consistent application of the doctrine would prevent. The doctrine, is, at best, not so much a hard and fast rule as a guide; and it should be remembered that it is not the function of courts to make law but to ascertain and administer it. There may be hardship in individual cases in apply. ing a fixed rule, but obedience to law is itself a hardship when the law is unsettled and doubtful-and all thoughtful men will admit that the latter is the greater evil.
LEWIS M. HOSEA. Cincinnati, Obio.
01 ALL the Carrent Opinions of ALL the State and Territorial Courts of Last Resort, and of the Supreme, Ctrouit and District Courts of tho United States, except those that are Published in Full or Commented apon in our Notes of Im. portant Decisions and except those Opinions in which no Important Legal Principles are Dio. cassed of Interest to the Profession at Large,
.........9, 20, 109
........ 38, 78 ..10, 33, 34
66, 77 .......... 6, 15, 26, 99, 100 ........... 22, 48, 67, 82, 87, 90, 93, 110
To the Editor of the Central Law Journal:
The views of your correspondent, John W. Smith, are presented in the form of an argumentum ad hom.