Commonwealth v. Carter

JUDGE PRYOR

delivered the opinion of the court.

An indictment was returned in the Graves Circuit Court against Mark Hubbard and two others, charging them with breaking into the store-house of one Boaz. The testimony showed that Hubbard took the window of' the house out and Ms confederates stood watch a short distance from the store-room, and when the goods were removed by Hubbard, Carter and James, two confederates, took charge of them.

There was a separate trial demanded, and Ed Carter being first tried was acquitted upon a peremptory instruction based upon the case of Stamper v. Com *528 monwealth, 7 Bush, 612 . There can be no doubt of the correctness of the rule that, in statutory offenses, where the plain intent of the statute is to inflict punishment only on the person actually committing the offense, others can not be brought within its provisions as principals upon proof that they were aiders and abettors. ■ The case of Frey v. Commonwealth, reported in 83 Ky., 191 , was an indictment under a ■statute enacted to prevent the destruction of bastard children by the mother. The statute reads : “If any woman be delivered of any issue of her body, which, being born alive, would be a bastard, shall endeavor * * * to conoeal the birth thereof, * * * she shall be confined in the penitentiary,” &c. (Gren. Stats., chap. 29, art. 4, sec. 14.) This statute was intended to apply alone to the mother, and illustrates the' distinction between the cases.

In. Evans v. Commonwealth, 11 Ky. Law Rep., 573 ; the statute provided that “if any one shall willfully and unlawfully burn” any house whatever, he shall be confined in the penitentiary. This statute was held to apply to aiders and abettors. Those who were present aiding and abetting in such cases are as much principals as the ones applying the torch or entering the building, and the doctrine of Stamper v. Commonwealth makes the rule too broad when saying that, where the offense is created by statute against one actually committing the offense, those aiding and abetting are not amenable as principals to its provisions. There is as much reason for punishing the aiding and abetting in a felony ■created by statute as there is if a felony at common *529 law. So the doctrine of Stamper v. Commonwealth is overruled; but where in cases it is plain from the nature of the ofíense made a felony by statute, that its provisions were only intended to afíect the party actually committing the ofíense, the doctrine of Stamper v. Commonwealth should apply.

As this is an appeal by the Commonwealth, the ■clerk is directed to certify the opinion to the court : below.