State Ex Rel. Dooley v. Coleman

One who aids in the commission of a felony is a principal in the second degree and must be actually or constructively present at the commission *Page 207 of the crime; and such presence must be alleged in the indictment or information.

It is alleged that petitioners aided in the commission of a felony by furnishing telephone facilities knowing they would be used in the unlawful operation of a place for gambling.

The information does not allege the presence of the alleged aiders or their participation in the commission of the felony; nor is it alleged that such alleged aiders by conspiracy or because of interest in the maintenance or conduct of the place used for gambling purposes, intended to furnish the telephone facilities so as to aid in maintaining the place for gambling.

The statutes of the State do not make it unlawful to furnish telephone facilities to those engaged in maintaining a gambling house; and the furnishing of telephone facilities with more knowledge that they will be used for gambling purposes, is not aiding in maintaining a gambling house within the existing statutes.

TERRELL, BROWN and DAVIS, J.J., concur.