Hicks v. United States
Facts
Hicks and Rowe, both armed and avoiding arrest, attended a dance where Colvard repeatedly urged them to go home with him; Hicks had earlier declared that if Colvard persisted in trying to take Rowe away, he would shoot Colvard. Later, witnesses about one hundred yards away saw Rowe confront Colvard in the road, twice aim a rifle at him and lower it, while Hicks laughed; they then saw Hicks remove his hat, strike his horse with it, and heard him say to Colvard, "Take off your hat and die like a man," after which Rowe fired the fatal shot. Hicks denied encouraging Rowe and testified that he tried to dissuade him, that Rowe was in a dangerous mood, and that he rode away with Rowe only out of fear before separating from him shortly afterward. The government's evidence showed Hicks did not fire the shot or physically participate in the killing, so its theory was that he was guilty as an accessory or principal by aiding and abetting.
Issue
Whether Hicks could be convicted as a principal for aiding and abetting Rowe where the jury was instructed that words having the effect of encouraging the shooting could suffice without clearly requiring intent to encourage, and where the jury was also told that presence for the purpose of aiding could establish guilt even without actual assistance despite no evidence of a prior conspiracy. Also, whether the trial court improperly commented on the credibility of Hicks's own testimony.
Rule
To convict a defendant as a principal on an aiding-and-abetting theory, the defendant's words or acts of encouragement must have been used with the intention of encouraging or abetting the principal's crime; it is not enough that the words or acts merely had that effect. Mere presence at the scene does not make a defendant guilty, and presence without actual assistance supports guilt only where there is evidence, such as a previous conspiracy or arrangement, making the defendant's presence part of the criminal enterprise. A trial judge should not defeat the statutory right of an accused to testify by hostile comments that effectively assume other witnesses are truthful or suggest the accused's condition deprives his testimony of probability.
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If the prosecution seeks to convict Nolan as a principal on an aiding-and-abetting theory, which additional finding is most necessary?