I do not think that article 238 of the Criminal Code abolishes the crime of accessory before the fact. The article permits, but does not require, that an accessory before the fact be indicted as a principal. In my opinion, the change effected in the law by the codal provision is procedural only, relating solely to the method of indictment. The purpose of the provision is, perhaps, to simplify criminal proceedings, so that an accessory before the fact may be charged as a principal and convicted on the indictment as an accessory before the fact, if the evidence discloses that the accused is an accessory before the fact and not a principal.
Hence, under the defense of the appellant that he was not a principal, but at most only an accessory, to the crime charged in the indictment, on which defense some evidence appears to have been adduced, I think he was entitled to have the jury charged, as he specially requested, on the legal distinction between the two offenses, so that the jury might determine, under proper instructions, of which offense he was guilty, or whether he was guilty of either.
For these reasons, I concur in the decree annulling the conviction and sentence appealed from and remanding the case to the district court for further proceedings. *Page 640