Guignon v. State

Sedgwick, J.,

concurring.

The defendant was tried and convicted on the statutory charge of procuring, aiding, and abetting another in *595the commission of a felony. Because, under the evidence, he was present at the time of the commission of the crime, which would render him guilty as principal, it is argued that he was illegally convicted. This court has held that procuring, aiding, and abetting a felony and the commission of it are distinct offenses, instead of being different degrees of the same offense, and that one cannot be charged with one offense and convicted of the other; but it has never held that where one is charged with aiding and abetting a felony, or, as at common law, with being an accessory before the fact, and from the evidence he is found guilty as charged, the mere fact that the evidence not only shows him an aider and abettor, but goes farther and shows him guilty as principal also, would operate to make the charge bad or the conviction void. In other words, the fact that a defendant is guilty of two offenses ought not to release him from the charge of being guilty of either. Common-law precedents have sometimes gone to extremes to protect the rights of persons charged with crime. In Casey v. State, 49 Neb. 403, the case cited, the defendant was charged as accessory before the fact and convicted. The case was reversed, not because the defendant was guilty as principal, but because, as stated by Judge Post in his opinion, there was no evidence whatever of any act on the part of the defendant as aider' or abettor of the crime charged. In other words, it was held that defendant could not be charged as accessory and convicted as principal. It is also claimed that' the information failed to show venue. The information does show that the robbery was committed in Hall county. No complaint of the information was made until after trial. It comes too late at this time.

• The propositions of the law which have been adopted by the court in the syllabus are all that is involved in the case.

For the reasons stated above, I concur in the conclusion.

Letton, J., concurs in. separate opinion of Sedgwick, J.