In error to the Hudson Quarter Sessions.
For the plaintiffs in error, Solomon Golat (Herman Marx, of counsel).
For the state, Daniel O'Regan, prosecutor of the pleas, and Frank G. Schlosser, assistant prosecutor.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiffs in error sued out this writ of error to review the judgment given upon their conviction of robbery;
and the entire record of the proceedings had upon the trial has been returned with the bill of exceptions, under section 136 of the act relating to procedure in criminal cases (Comp. Stat. 1910, p. 1863; Rev. Stat. 1937, 2:195-16), although the state maintains that, for failure of the statutory authentication, the trial proceedings are not before us.
First: It is urged in limine that the writ should be dismissed for the reason that plaintiffs in error have ignored the statutory mandate to "cause a transcript of the record to be made and returned with the writ of error" (Comp. Stat. 1910, p. 2209, § 7; Rev. Stat. 1937, 2:195-8), in that "no final judgment is disclosed in such return, since the minutes of the Quarter Sessions Court do not comprise the record to be returned by the county clerk, as clerk of the Court of Quarter Sessions;" and that, in any event, notwithstanding the certificate of the trial judge that the return made in obedience to the command of the writ "contains the entire record of the proceedings had upon" the "trial," plaintiffs in error should not have the benefit of the more extensive review provided by section 136 of the Criminal Procedure act, supra, but should be confined to the bill of exceptions.
The last point is clearly untenable. It is predicated upon the erroneous view that where, as here, "the trial court certifies that the plaintiffs in error are bringing up the entire record of the proceedings had upon the trial, there must be in addition a formal authentication of the proceedings themselves." In other words, the record of the trial proceedings must be specially attested by the trial judge "at the end of the stenographic transcript." But here the trial judge's certificate plainly testifies that the return made to the writ embraces a transcript of the trial proceedings conceded to be authentic.
As to the first point, the return incorporates the sentences imposed; and, while couched in informal language in this regard, it of necessity is presumed to disclose the judgment actually entered, since the trial judge has certified that the return so made exhibits the "record and proceedings * * *, with all things touching and concerning the same, as before the Court of Quarter Sessions of the County of Hudson, they
remain, or are in the custody or control of the clerk of said court." And, in view of the admitted confinement of plaintiffs in error in the state prison in execution of the sentences thus imposed, we deem it politic, if not indeed imperative, notwithstanding any formal deficiency, to review the proceedings so embodied in the return.
Thus we are brought to a consideration of the errors assigned on the bill of exceptions and the causes for reversal specified under the statute adverted to. The former are embraced within the latter, and do not require separate treatment.
Second: The indictment charged the perpetration of the robbery by plaintiffs in error as principals; and the initial point assigned for reversal challenges the instructions that, if Woodworth and Brown aided and abetted Panchelly in the perpetration of the robbery charged, "all would be guilty of robbery as principals," and that "in a robbery all who are present aiding and abetting in the commission of the robbery are guilty as principals."
Section 120 of the Crimes act of 1898 (Comp. Stat. 1910 p. 1785; Rev. Stat. 1937, 2:166-1), provides that "Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, and his aiders, procurers and abettors, shall be guilty of a high misdemeanor;" and the argument is made that, by this provision, aiding and abetting is made "a separate substantive crime," and must therefore be charged in terms, and that a principal in the second degree may not be lawfully convicted of the "principal offense" under an indictment charging him only as a principal in the first degree.
In a case such as this, it is requisite only that the indictment accuse the defendant according to the legal effect of the offense. Under the common law, all who are present, aiding and abetting in a felony, are treated as principals, while in the case of misdemeanors all who aid, abet or participate are considered as principals of ...