13 Ky.L.Rptr. 308, 92 Ky. 1
Court of Appeals of Kentucky
Benge v. Commonwealth.
Sep 10, 1891.
ACTION: Affirmed.

Appeal from circuit court, Clay county.
"To be officially reported."
Lyon S. Benge was convicted of the murder of one Joseph Bowling, and appeals.

Bennett, J.
The appellant and Jerry Hampton and others were indicted for the murder of Joseph Bowling, by cutting him with knife; Jerry Hampton being the actual perpetrator of the deed, and the appellant and others being aiders and abettors. It appears from positive and uncontradicted proof that while Jerry Hampton and another were engage in a difficulty with each other, the appellant and Matison Benge, without any provocation or excuse whatever, stabbed and killed Joseph Bowling, an unoffending and unresisting person. The court instructed the jury that they could find the appellant guilty as the actual perpetrator of the deed, notwithstanding he was indicted as aider and abettor only. The appellant complains of this instruction on the ground that one indicted as aider and abettor only cannot be convicted as the actual perpetrator of the deed. This contention is a mistaken view of the law. It is based upon the theory that the actual perpetrator of the deed and the aider and abettor are separate offenders in legal contemplation, and the one cannot be convicted of the crime committed by the other. But this, as said, is a mistake. There is but the one crime charged,-that of murder by all the defendants. It is true, the prosecution goes upon the theory that the appellant and Jerry Hampton committed different parts of the crime; the appellant committing a dependent part, which was not criminal unless the deed itself was actually perpetrated. But, nevertheless, there is in law but one crime charged, and the separate parts performed by each constitute in legal contemplation the joint act of all. Each is the agent and instrument of the other. Hence each, although performing different parts the aiders and abettors being a dependent part, in law is a principal, and is criminally responsible for the act of the other, as well as for his own act. The one charged as principal may be found guilty of aiding and abetting; and the one charged as aider and abettor may be found guilty as principal. This is for the reason that each is the agent and instrument of the other, and his act is the act of the other, and the act of each constitutes but one crime, and each is guilty of the act actually committed by the other. Such act is, in law, the act of each, Hence each is principal as to each act, although he did not actually perpetrate each act; but the act that the other perpetrated was his act, and he is principal as to it. Now, the actual perpetrator of the deed being the agent and instrument of the aider and abettor, for which the latter is criminally responsible, it follows that he is equally responsible under the indictment if he actually perpetrated the deed, instead of the person charged in the indictment to have done so, although he is indicted as aider and abettor only.

The affidavit for a continuance is defective (1) in not showing what steps had been taken to procure the attendance of the witnesses, and that they were in the jurisdiction of the court; (2) in not stating that the appellant believed their alleged testimony was true.

The judgment is affirmed.
Ky.App. 1891.
Benge v. Commonwealth.
17 S.W. 146, 13 Ky.L.Rptr. 308, 92 Ky. 1


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