CLAYTON, J.
The defendant, Lon Williams, wfl indicted, tried, convicted, and sentenced on the charge of assault with intent to kill, committed on one Samuel Childers. The indictment, in proper form, alleges that o| John Williams, a brother of the defendant, was the prir pal offender, and that the defendant was present, aiding abetting the said John Williams in the commission of the I fense. John Williams had been previously indicted and cl victed for the assault with intent to kill, under section 2l| Rev. St. U. S. The evidence tended to prove that on day of the alleged assault John Williams and his brotl [561] ie defendant, both negroes, went to the law office of Child-s, the assaulted party, he being a lawyer, for the purpose transacting some business with him relating to the pur-Lase of a house belonging to Childers, located on the land limed by John Williams. While talking the matter over, ispute arose between them, in which, however, the defiant took no part. This dispute ended in a hand to hand |'ht between the two men, in which John Williams, with a cket knife, several times cut and stabbed Childers, one of wounds being an exceedingly dangerous one. As to the fendant having criminally participated in the assault, the sof is very unsatisfactory. The affray was sudden. He d no words of encouragement to his brother. He dis-yed no weapons of any kind, nor did he lay his hands on aer of the combatants. The government proof, however, >ws that while the two men were fighting the defendant pped over to where they were, and raised his fist as if to ,ke Childers, but was prevented by the interposition of ther man, who was in the office during the whole time of difficulty. The defendant, whose reputation as a peaces and law-abiding man was proven to be good, denied 5 hs had taken any part in the difficulty, and produced íesses whose testimony tended to show that he was cal-for assistance to stop it. ’ The court, however, on the rf, submitted the case to the jury, giving them in charge struction on the presumption of innocence and the law asonable doubt. A motion for a new trial was filed, overruled, in which the insufficiency of the evidence to ort the verdict was one of the grounds set up. As there ther grounds assigned as error upon which this case be reversed, we will not now consider the insufficiency e evidence. After the defense had submitted all of its ¡f, the United States attorney recalled the defendant, he pg testified in his own behalf, and, among others, over efendant’s objection, the following questions were ask[562] ed and answers made: -‘Q. (By U. S. Atty,) What was t] result of your brother’s case? Was he convicted or no (Objected to by defendant as being incompetent, irrelevai immaterial, and prejudicial to the rights of the defendant the case, and not relevant to any of the issues in the ca¡ and for the further reason that it is secondary evidenl Objection overruled to which the defendant at the time J cepted.) Q. Was your brother convicted in this case? Yes, sir, Q. When was your brothar tried? (Objected etc., and overruled. Exception saved.) A. It was Chri mas week. Q. It was since last September? A. Yes, si The record of the conviction of John Williams was not p duced, nor was it shown that it had been lost or destroy nor, except the above testimony, was there any evidence his conviction offered. There are two errors assigned aS' the admission of the above testimony: (1) That it is material and irrelevant; (2) that the record of the conv ion of John Williams was primary evidence of that f and, until its loss or destruction was shown, secondary dence of the conviction was not competent.
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CLAYTON, J.
The defendant, Lon Williams, wfl indicted, tried, convicted, and sentenced on the charge of assault with intent to kill, committed on one Samuel Childers. The indictment, in proper form, alleges that o| John Williams, a brother of the defendant, was the prir pal offender, and that the defendant was present, aiding abetting the said John Williams in the commission of the I fense. John Williams had been previously indicted and cl victed for the assault with intent to kill, under section 2l| Rev. St. U. S. The evidence tended to prove that on day of the alleged assault John Williams and his brotl [561] ie defendant, both negroes, went to the law office of Child-s, the assaulted party, he being a lawyer, for the purpose transacting some business with him relating to the pur-Lase of a house belonging to Childers, located on the land limed by John Williams. While talking the matter over, ispute arose between them, in which, however, the defiant took no part. This dispute ended in a hand to hand |'ht between the two men, in which John Williams, with a cket knife, several times cut and stabbed Childers, one of wounds being an exceedingly dangerous one. As to the fendant having criminally participated in the assault, the sof is very unsatisfactory. The affray was sudden. He d no words of encouragement to his brother. He dis-yed no weapons of any kind, nor did he lay his hands on aer of the combatants. The government proof, however, >ws that while the two men were fighting the defendant pped over to where they were, and raised his fist as if to ,ke Childers, but was prevented by the interposition of ther man, who was in the office during the whole time of difficulty. The defendant, whose reputation as a peaces and law-abiding man was proven to be good, denied 5 hs had taken any part in the difficulty, and produced íesses whose testimony tended to show that he was cal-for assistance to stop it. ’ The court, however, on the rf, submitted the case to the jury, giving them in charge struction on the presumption of innocence and the law asonable doubt. A motion for a new trial was filed, overruled, in which the insufficiency of the evidence to ort the verdict was one of the grounds set up. As there ther grounds assigned as error upon which this case be reversed, we will not now consider the insufficiency e evidence. After the defense had submitted all of its ¡f, the United States attorney recalled the defendant, he pg testified in his own behalf, and, among others, over efendant’s objection, the following questions were ask[562] ed and answers made: -‘Q. (By U. S. Atty,) What was t] result of your brother’s case? Was he convicted or no (Objected to by defendant as being incompetent, irrelevai immaterial, and prejudicial to the rights of the defendant the case, and not relevant to any of the issues in the ca¡ and for the further reason that it is secondary evidenl Objection overruled to which the defendant at the time J cepted.) Q. Was your brother convicted in this case? Yes, sir, Q. When was your brothar tried? (Objected etc., and overruled. Exception saved.) A. It was Chri mas week. Q. It was since last September? A. Yes, si The record of the conviction of John Williams was not p duced, nor was it shown that it had been lost or destroy nor, except the above testimony, was there any evidence his conviction offered. There are two errors assigned aS' the admission of the above testimony: (1) That it is material and irrelevant; (2) that the record of the conv ion of John Williams was primary evidence of that f and, until its loss or destruction was shown, secondary dence of the conviction was not competent.
As to the first assignment of error, was the proc the conviction of John Williams in this case relevant 1 material? In framing the indictment, it was evidently! tended to charge the defendant as an accessory before fact, and not as a principal. By the common law, an ac| sory before the fact is one who, being absent at the tir the commission of the offense, doth yet procure, counsel command another to commit it. Absence is indispensfl necessary to constitute an accessory, for, if he be actual| constructively present when the felony is committed, an aider and abettor, and not an accessory before the Williams vs State, 41 Ark. 173. So, by the common principals are either in the first degree or in the sel degree. He who actually commits the offense is said t| principal in the first degree; he who is present, aiding [563] )etting him in doing it, is said to be principal in the second igree. Id. In an indictment against an accessory, all of e facts necessary to constitute the offense as against the incipal, together with those showing his own participation the crime, must be alleged, and at the trial the guilt of e principal as well as of the accessory must be proven, ley may be jointly or separately indicted and tried. If a principal is convicted in advance of the accessory, the ;ord of the former’s conviction is prima facie evidence of ; guilt. Where the rules of the common law prevail, the sessory cannot be convicted except with or after his ncipal, and, if after, the record of the principal, s con;tion must be produced at the trial, and no further evi-Iice need not be offered to make a prima facie case on this nt. 2 Bish. Cr. Proc. § 12. But it is otherwise as to a _ncipal in the second degree; that is, as to those who are sent, aiding and abetting. As to such the indictment d not, in its form, distinguish between principals of the t and of the second degree. Starkle states the rule to be: hen A. and B. >are present, and A. commits an offense in ch B. aids and assists him, the indictment may either al-the matter according to the facts, or charge them both )rincipals in the first degree, for the act of one is the act he other; and upon such an indictment, B., who was ent, aiding and abetting, may be convicted, though A. • quitted.” 1 Starkle, Cr. PI. (2d Ed.) 81; 2 Bish. Cr. 5. § 3. But, in the case of a principal in the second de- ¡, the law does not require evidence of guilt of the other y to the transaction. Mr. Bishop states the law in such e to be as follows: • ‘But when one, instead of being cessory, is principal in the second degree, as being |ent, aiding and abetting, and there is, therefore, no oc-n to show the guilt of the other party to the transact-|evidence tending merely to show the other’s guilt is not ssible. . For example, the record of the conviction of [564] one who struck the fatal blow is not admissible on the tri of another charged with standing by and abetting. It prov no material fact, and only tends to prejudice the jury.” Bis Cr. Proc. § 14; People vs Bearss, 10 Cal. 68. Of course, t‘ acts of the one, in the commission of the offense, so far they are connected with the other and are of the res gest may be proven at the trial, but, both being principals, £ conviction of one has no tendency to show the guilt of other, and therefore proof of it in any form is not admis ble. But it is contended that, under the statute in force this jurisdiction, principals in the second degree are now be considered as accessories before the fact, and indie1 and tried as such. The statute (Mans! Big. § 1505) p vides as follows: ‘ ‘An accessory is he who stands by, aij abets or assists, oriwho, not being present aiding, abett- or assisting, hath advised and encouraged the perpetra of a crime. ” Section 1506: “He who thus aids, assii abets, advises or encourages, shall be deemed in law a p: cipal and be punished accordingly.” Section 1508: persons being present, aiding and abetting, or ready consenting to aid or abet, in any felony, shall be deei| principal offenders and indicted and punished as such."’ supreme court of Arkansas, in construing these statu have held, substantially, that section 1505 has the ei merely of changing the name of the common-law degre* a crime known as “principal in the second degree, ” to thi “accessory,” without changing the principle of law rela to those degrees; that section 1506 only alludes to the pur ment, requiring that an accessory shall be punished to same, extent as a principal; that section 1508, embracing cases of common-law principals in the second degree, i| tended merely to declare that as to all such, not only punishment, but also the procedure, should be the san| in cases of the principal offenders; that they shall be dieted and punished as such.” In Williams vs State, 41 [565]*5653, the Supreme Court of Arkansas, after defining princi-,1s in the second degree and accessories before the fact at mmon law, says: “An accessory was defined by the Reed Statutes to be ‘he who stands by, aids, abets or assists, who, not being present aiding, abetting or assisting, hath vised and encouraged the perpetration of a crime. ’ ” This section 1505, Mansf. Dig. “And it was declared that ‘he lo thus aids, assists, 'abets, advises or encourages shall be ¡med in law a principal, and punished accordingly. ’ ” is is section 1506 of Mansf. Dig. “In this definition, the tinction between accessories before the fact and princi-s in the second degree, as observed in the common-law inition as above given, is lost sight of. But in the act of h December, 1838, modifying the Penal Code to correspond ¡h the establishment of a penitentiary, it is declared that persons being present aiding and abetting or ready and senting to aid, abet in any of the offenses mentioned in act,’etc., ‘shall be deemed principal offender and in-ed and punished as such.” This is carried into Mans-’s Digest as section 1508. “Accessories before the fact punishable as principals, but must be indicted as acces-es. So it was held in Smith vs State, 37 Ark. 274, that who advises or encourages the commission of a felony, is not actually or constructively present when it is corned, cannot be convicted under an indictment charging as principal in a crime. It is only persons who are ent, aiding and abetting, or ready and consenting to aid abet, in a felony, who can be indicted as principals. ” So pears that, while the name of principal in the second ee is ' changed to that of accessory'before the fact, the áples of the common law governing these degrees of a e remain as they were before the enactment of these tes. An accessory before the fact, who was not pres-aiding and abetting the commission of a crime, cannot onvicted unless it is charged in the indictment and [566] proved at the trial that his principal is guilty of the offens( And, in the language of Mr. Bishop, above cited: “Th record of the conviction of one who struck the fatal blow not admissible on the trial of another charged with standin by and abetting. It proves no material fact and only tenc to prejudice the jury.” This construction of the statute w: held by the Supreme Court of Arkansas prior to the exte: sion of Mansfield’s Digest over this territory; and hence, us, it is the adjudicated law in this case, it having bei alleged in the indictment and proven at the trial that t’ defendant was present at the commission of the offense John Williams, the principal offender, and, if guilty at aj was only so by virtue of the fact that, being present, aided and abetted him in his crime. Proof that John liams had been convicted, was irrelevant and immateri| and, therefore, inadmissible. The court below erred in fusing to sustain the objection of the defendant to the adm| sion of this testimony. As to the second assignment error, relating to this testimony, we think it too clear admit of argument that upon the trial of an accessory conviction of the principal must be shown by the record| in existence; that parol evidence cannot be used to establ that fact unless its loss or destruction first be proven, this case, if it had been alleged and shown that the defe¡ ant was an accessory before the fact in the sense that not being present, had advised and encouraged the per ration of the crime, so that proof of the conviction of J< Williams would have been competent, it would have b| necessary for that purpose to have produced the record, at least first to have shown its loss of destruction, be: resorting to parol testimony. For the aforesaid errors judgment of the court below is reversed, and the cas-manded for a new trial.
Accomplice Accessory— Evidence as to conviction ot principal.
Parol Evidence as to conviction of principal.
Springer, C. J., and Thomas, J., concur. Toj SEND, J., not participating.