Opinion
July 29, 1952.
Appeal from the Circuit Court, Bay County, Ira A. Hutchison, J.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.
Isler Welch and Ernest W. Welch, Panama City, for appellee.
The state appealed from an order of the circuit judge quashing an indictment so far as it concerned the appellee, Jack Mayo, who was indicted jointly with one Ellis Mayo. From the grounds of the motion to quash is seems that two questions have emerged for consideration, discussion and determination by this Court, namely, the sufficiency of the allegations to charge an offense against the appellee, and the existence of power in the grand jury to return any indictment at all when the preceding grand jury had returned a "no true bill."
Determination of the first of these should be prefaced by the reminder that the distinction between an accessory before the fact and a principal in the second degree is the absence, in the first instance, or the presence, in the second, of the person charged, at the time of the commission of the crime. Albritton v. State, 32 Fla. 358, 13 So. 955. The state contends that in the indictment appellee is clearly described as a principal, while the appellee insists that his position is not defined as either accessory or principal with the clarity that should characterize an instrument of such moment.
At this point it is necessary to take a close look at the indictment and to quote the relevant language. The grand jurors presented that Ellis Mayo, on a certain day, killed his victim from a premeditated design; that appellee "on said date, and in the County and State aforesaid * * *" from a like design "was then and there present, aiding, assisting, encouraging and counseling the said Ellis Mayo the aforesaid felony, in the manner and form aforesaid, to do and commit * * *."
The gist of appellee's argument which we suppose is the one that convinced the judge the motion was well founded is that the language we have quoted did not definitely place him at the scene, but is susceptible of the construction only that he was in the county at the time, hence could have assumed the role of accessory instead of principal. To sustain this contention appellee cites the case of Kauz v. State, 98 Fla. 687, 124 So. 177, 178. We have examined the original file of that case and have found that the information contained the language, with reference to the accomplice, simply that he then and there aided, counseled and procured the burning of a building. The word "present" did not appear in the charge. The court held that the words "`then and there'" referred to the date and the county, when and where the crime was perpetrated.
Similar phraseology was held in Neumann v. State, 116 Fla. 98, 156 So. 237, 240, to have been so ambiguous as not to apprise the defendant whether he was charged as accessory or principal. Here again the word "present" did not appear. So these two decisions upon which appellee largely relied help us little.
Now we realize we are getting to a rather fine distinction when one word, "present," may be considered as distinguishing the cases cited from the one at bar, but it seems to us it does justify an independent interpretation of the indictment involved. We think that to accuse a man of murder on a certain date in a certain county, and to charge another with being "then and there present, aiding [and] assisting * * *" the perpetrator amounts to designating the latter a principal. The difference in grammatical construction is important. In the cases cited by appellee the words "`then and there'" referred to the day and county where the crime was alleged to have been committed, and they modified the verbs "did * * * aid, counsel and procure." In the instant case these words modify the adjective "present," and therefore emphasize it. See Pope v. State, 84 Fla. 428, 94 So. 865; Jones v. State, 122 Fla. 307, 165 So. 33.
This brings us to the final aspect of this problem. Besides the present participles "aiding" and "assisting," there were used also the ones "encouraging" and "counseling." The appellee takes the position that the use of a word appearing in Sec. 776.01, Florida Statutes 1949, and F.S.A., entitled "Accessory before the fact" indicates that the state attempted to charge him as accessory. This contention is based too much on the title and too little on the content of the statute. A careful study of it convinces us that it refers both to accessories before the fact and principals in the second degree. We are directed to no other statutory definition of principal in the second degree. As we construe this law it means that "Whoever aids in the commission of a felony * * *" as a principal in the second degree or is accessory "by counseling, hiring, or otherwise procuring * * *" it to be committed shall be punished the same as the principal in the first degree; and we understand that the verb "aids" and the gerunds "counseling," "hiring," and "procuring" refer to both categories. And in the last analysis the statute is not primarily one to define anyway, but to fix the punishment of those not actually committing an offense, though abetting it beforehand or at the time it is perpetrated. For instance, the distinguishing feature, mentioned at the outset, that is, the presence of the accused at the scene, is not even mentioned.
Anyway, the fact that in the indictment here questioned there was used one of the three gerunds appearing in the statute would not so becloud its true character as to justify quashing it for vagueness. Two of them, and all four participles used in the indictment in the present case are found in the indictment held valid in Pope v. State, supra.
In the indictment the appellee was charged as principal.
A "no true bill" was reported by the grand jury at the fall term, and at the following, spring, term the present indictment was returned. This procedure was challenged by the appellee in his motion to quash. The failure of the first grand jury to indict did not preclude the succeeding grand jury from re-investigating the case and making such disposition of it as was considered appropriate.
The order quashing the indictment is —
Reversed.
SEBRING, C.J., and TERRELL, HOBSON and MATHEWS, JJ., concur.
ROBERTS, J., not participating.
CHAPMAN, J., absent because of illness.