People v. Schwartz

By the Court, Sanderson, J.: The defendant was indicted for the crime of arson in the second degree, under the seventh section of the Act of the 19th of April, 1856, which provides that “ Every person who shall wilfully bum, or cause to be burned, any building, etc., * * * which shall be at the time insured against loss or damage by fire, with intent to injure or defraud such insurer, whether the same be the property of such person or any other, shall, upon conviction, be adjudged guilty of arson in the second degree and punished accordingly.” (Statutes 1856, p. 132.)

He is charged as accessory, and the language of the indictment on that head is as follows: “ That said Henry Schwartz on, etc., at, etc., feloniously, wilfully and maliciously did aid, abet and assist, advise and encourage one Albert Selig, etc.” On the head of insurance and the intent to defraud the language of the indictment is that the “ building at, etc., * * * was insured against loss and damage by fire in the Phoenix Insurance Company, then doing business at, etc., * * * said company being legally established and doing business as aforesaid, with intent to injure, damage and defraud said insurance company,” etc.

The indictment was demurred to, in effect, upon the ground that in the parts above quoted there is a failure to state facts [164]sufficient to constitute the offense intended. The demurrer was overruled, and we think erroneously.

Where a party is proceeded against as an accessory it is better to pursue the course attempted in this case and charge Mm as such rather than as principal, because such a course, if not absolutely necessary, is certainly more consistent with our system of pleading, which favors a statement of the facts constituting the offense as near as may be, precisely as they occurred. But care should be taken to state the acts of the defendant as fully as they are stated in the statute. When that has been done there can be no question as to the sufficiency of the indictment on that score, as this Court has repeatedly held. Now, without undertaking to say that this indictment is positively bad where it charges the acts which made the defendant an accessory, we think it is not in that ■ respect what it ought to be. It does not fully come up to the language of the statute which defines an accessory. “ An accessory is he or’she who stands by and aids, abets or assists; or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime.” (Act concerning crimes, Sec. 11.) Here are two modes of action, either of which renders the actor an accessory. If the former be the true one in a given case, let the indictment follow the statute and allege that the defendant “ stood by, aided, abetted and assisted,” etc., and so as to the latter. If it be doubtful as to which of the two modes is the true one, let both be-charged, and all questions of variance between the allegations of the indictment and the testimony will then be avoided.