R.O. Wilson and E. Raskey were charged by information, under Rem. Comp. Stat., § 2601 [P.C. § 8944], with the crime of larceny by obtaining from another the possession of a Ford sedan by false pretenses. There was a verdict of guilty against both of them. From a judgment and sentence on the verdict, R.O. Wilson has prosecuted this appeal.
The information sets out with circumstantial detail the ruse or false pretenses by E. Raskey in deceiving the owner of the automobile and getting possession of *Page 20 it. The information is entirely sufficient for that purpose. It then alleges that R.O. Wilson at that time and place did encourage, advise, induce, aid, abet and procure E. Raskey to wilfully and feloniously make false pretenses and get possession of the sedan.
[1] The first assignment is that appellant's demurrer to the information should not have been overruled. The argument is that it does not affirmatively appear from the information that the appellant was actually present at the time the false pretenses were made by E. Raskey. If it be assumed that the charge against the appellant consisted of conduct on his part prior to the success of the false pretenses made by E. Raskey and that the appellant was not personally present, that, of course, would charge appellant with being an accessory before the fact. Rem. Comp. Stat., § 2007 [P.C. § 9132], provides:
"No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals."
The statute is specific and certain. It is aimed at two classes of persons concerned in the commission of an offense. First, "Whether they directly counsel the act constituting the offense"; and second, "or counsel, aid and abet in its commission though not present". The charge against the appellant put him in the latter class, and it was not necessary to allege that he was personally present at the time E. Raskey made the false pretenses.
[2] It is further complained that the information "attempts to charge the secretion and withholding of *Page 21 the automobile without alleging any venue or place of such secretion or withholding". The information does allege that the defendants, having obtained the personal property, did unlawfully secrete and withhold and appropriate it to their own use. As a rule, that is what larcenists do. But that allegation does not invalidate the information. It is and will be considered as mere surplusage, or in the nature of pleading evidence admissible in proving the intent involved in a crime that is malum in se. The defendants had already appropriated the property to their own use by getting possession of it by false pretenses. The allegation was in no sense prejudicial to the appellant.
Lastly, it is contended that the evidence was insufficient to sustain a conviction. But we are satisfied the evidence was ample to justify the verdict, upon either confession of the appellant which was admitted in evidence, or evidence in the case wholly independent of that confession.
Affirmed.
*Page 22TOLMAN, C.J., FULLERTON, MAIN, and HOLCOMB, JJ., concur.