Turner, J. Wirt, Jr.

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University of Kentucky

Kentucky Law JournalVolume 27 | Issue 3 Article 171939Homicide--Aiding and Abetting--Moral Duty toActJ. Wirt Turner Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationTurner, J. Wirt Jr. (1939) "Homicide--Aiding and Abetting--Moral Duty to Act," Kentucky Law Journal: Vol. 27 : Iss. 3 , Article 17.Available at: https://uknowledge.uky.edu/klj/vol27/iss3/17CASE COMMENTSits decision on the fact that the founding fathers intended the use ofthe paper ballot.The case which the court cites to sustain its position is Nicholas v.Minton,3 in which the Massachusetts court held a similar act invalid.The constitutional requirements were that officers "shall be chosen bywritten votes" and that those commissioned to conduct the electionshall "sort and count the votes, and form a list of the persons votedfor, with the number for each person against his name" and "make afair record of the same" and "a public declaration thereof."It is submitted that it is possible to distinguish the two casesbecause of the difference in the two constitutional provisions. A markedvote is not a written one; a deposited vote is not one to be sorted andcounted. There may be sufficient compliance with the Kentucky consti-tution without a paper ballot which is marked. The same resultrequired by the constitution, a secret ballot, is reached by the use ofthe machine. The word "marked" is defined by Webster's New Inter-national Dictionary as "indicated". The same authority defines "de-posited" as "put" or "lay down". When a voter operates a votingmachine, he indicates his choice and puts it down on the recordingapparatus in much the same manner as if he had marked a ballot anddeposited it in a ballot box. Bearing in mind the definitions of thewords given and the principle of construction which the court recog-nizes in the case, that language of the constitution which is capableof expansion will be so interpreted and held adaptable to the conditionsof present day society,' it is submitted that the Kentucky Constitutionshould be held to authorize the use of voting machines.JoHIN PAUL Cuay, JR.HOMICIDE-AIDING AND ABETTING-MORAL DUTY TO ACT.Defendant became engaged in a roadside fight with deceased at adance. W entered the fight to aid defendant. Defendant thereuponwithdrew from the fight and ordered the crowd which had gathered tostand back. Deceased died from knife wounds inflicted by W, and thetrial court convicted both defendant and W of voluntary manslaughter.Upon appeal the decision of the trial court was affirmed with the fol-lowing comment: "He (defendant) stood by and looked on and sawhis large, strong companion stab (deceased) to death and did nothingto prevent it and commanded the crowd to stand back and nobodybother them, thereby aiding and encouraging W in stabbing (deceased)and deterring bystanders from interfering and preventing W fromkilling (deceased)." Wright v. Commonwealth, 272 Ky. 77 (1938).This case is illustrative of the extent to which our law has3 196 Mass. 410, 82 N. E. 50 (1907); Contra, Opinion of the Justices,178 Mass. 605, 60 N. E. 129 (1901).'117 S. W. (2) 918, 920.KENTUCKY LAW JOURNALencroached upon moral obligation in establishing legal reason forpunishment.Defendant's duty to protect deceased from death at the hands ofW was, at most, a moral obligation, and, although the failure to actis definitely reprehensible, it cannot subject defendant to punishmentat the hands of the law.1 And the fact that the altercation betweendefendant and deceased was primarily responsible for bringing on thefatal encounter is immaterial.2 Then the only real issue for considera-tion here is whether a command by an unarmed man to a crowd of mento prevent interference with a roadside brawl will be sufficient to war-rant a conviction of manslaughter as aider and abettor when the brawlresults in the homicide of one of the participants.It may safely be declared as the law in this Commonwealth thatone may aid and abet the crime of manslaughter, and that the principalactor, the aider and abettor, and the accessory before the fact are allprincipals in the first degree and equally guilty, and may be so accusedand convicted.3 However, to make defendant an aider and abettor, hemust do or say something showing his consent to the felonious purposeand contributory to its execution.' The consent in itself is not suffi-cient, since it does not come up to the meaning of the words "aid andabet".5The effect (contribution to the execution of the felonious purpose)of defendant's command to the crowd, though indicative of his consentto the actions of W, would seem to be practically insignificant ascompared to the effect of the possession of a dangerous weapon by Whimself. It seems more reasonable to believe that the crowd wasafraid to approach the contestants due to possession of a dangerousweapon by the enraged and half-crazed W than it was afraid of thecommands of the unarmed defendant. Then it would seem that theunderlying factor in this conviction lies in the prevalence of a pro.nounced moral turpitude.Nevertheless, there is a legal presumption prevalent in this Com-monwealth which lends legal reason to the conviction. When one Ispresent encouraging, assisting, or advising another to do an unlawfulact, regardless to what degree such advice, assistance, or encourage-I People v. Beardsley, 150 Mich. 206, 113 N. W. 1128 (1907); Rex v.Smith, 2 C. & P. 449, 12 E. C. L. 668 (1825).2 Landrum v. Commonwealth, 123 Ky. 472, 96 S. W. 587 (1906).3 Polly v. Commonwealth, 15 K. L. R. 502, 24 S. W. 7 (1893);Tucker v. Commonwealth, 145 Ky. 84, 140 S. W. 73 (1911).'Karnes v. Commonwealth, 125 Va. 758, 99 S. E. 562 (1919); Chap-man v. State, 43 Tex. Cr. Rep. 328, 65 S. W. 1098 (1901); Connaughtyv. State, 1 Wis. 159, 60 Am. Dec. 370 (1853).5 "There is a plain distinction between consenting to a crime andaiding and abetting in its perpetration. Aiding and abetting areaffirmative in their character; consenting may be a mere negativeacquiescence, not in any way known to the principal malefactor."White v. People, 81 Ill. 333, 337 (1876).CASE CO _xENTSment is effective, the law presumes that the one acting is induced tocommit the act by the presence and encouragement of the other.6 And,although moral turpitude played the major role in the conviction, thispresumption affords legal reason to the decision.J. Wiar TunNm'Bast v. Commonwealth, 124 Ky. 747, 99 S, W. 978 (1909).

Homicide--Aiding and Abetting--Moral Duty to Act

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Homicide--Aiding and Abetting--Moral Duty to Act

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