People v. Terman

PULLEN, P. J.

Appellant herein, together with Edwin Williams and another, were by an indictment charged .with the murder of David Terman, the husband of appellant, on the eleventh day of April, 1934, and in a second count the defendants were charged with the crime of conspiracy to murder, and thereafter in pursuance of said conspiracy did murder David Terman.

At the first trial William's was found guilty of murder, but as to the guilt or innocence of the others the jury could not agree. Upon the present trial appellant was found guilty of murder of the second degree and her co-defendant was acquitted.

The evidence disclosed that Williams shot Terman, and appellant was charged on the theory that she aided and abetted him in the commission of the crime.

Appellant, appealing, contends the evidence is insufficient to support the verdict, and that the district attorney was guilty of prejudicial misconduct. Section 31 of the Penal Code provides that “all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor and whether they directly commit the act constituting the offense, or aid and abet in its commission, or not being present, have advised and encouraged its commission . . . , are principals in any crime so committed.”

Section 971 of the Penal Code provides: “ . . . All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried and punished as principals.”

In 7 California Jurisprudence, page 888, it is said: “ . . . The legal definition of ‘aid’ is not different from its meaning in common parlance. It means to assist, to supplement the efforts of another. ‘Abet’ is a French word combined of two words ‘a’ and ‘beter’,—to bait or excite an animal. The word ‘aid’ does not imply guilty knowledge or felonious intent, whereas the word 'abet’ includes knowledge of the

[347]

wrongful purpose of the perpetrator and counsel and encouragement in the crime.”

To authorize the conviction of one as an aider and abettor of a crime it must be shown not only that he aided and assisted therein, but also that he abetted the act, that is to say that he criminally or with guilty knowledge and intent, aided the actual perpetrator in the commission of the act.