State ex rel. Attorney General v. Tally

Supreme Court of Alabama · 1894 · Criminal Law

Criminal Lawaiding and abettingconstructive presenceprincipal in the second degreemurderaccessory before the factfacilitationencouragement

Facts

Ross fled Scottsboro because he feared the Skeltons would kill him, and on February 4, 1894, the Skeltons pursued him to Stevenson and murdered him there. After the Skeltons had left, Tally learned they were pursuing Ross to kill him, remained at the telegraph office watching to see whether anyone would warn Ross, and when E. H. Ross sent a telegram warning Ross that four armed men were following him, Tally sent a telegram to Huddleston in Stevenson stating, "Do not let the party warned get away. Say nothing." Huddleston delayed warning Ross, and Ross arrived at Stevenson unaware of the four assailants; he was then ambushed and killed by the Skeltons.

Issue

Whether Tally, although not physically present at the killing and not shown to have joined any prior plan, was guilty of murder because after learning of the Skeltons' intent he intentionally acted to prevent warning from reaching Ross and thereby aided and abetted the homicide. Also, whether such guilt required proof that Tally's acts actually contributed to Ross's death, and if so, whether that contribution was shown.

Rule

A defendant who is not the immediate killer may be guilty as a principal if, with knowledge of the killer's design, he does acts intended to further the crime that either encourage the killer through preconcert or known presence, or actually facilitate the crime. Mere presence with intent to aid is not enough unless it is preconcerted or known to the principal; but actual assistance need not be indispensable to the result, because it is sufficient if the defendant's conduct makes the killing easier or deprives the victim of a chance of life he otherwise would have had.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Macon, Georgia, Devin Cole learns that his cousins are driving to Augusta to kill Omar Reed. Devin stays behind at a private dispatch office and, after seeing Omar's sister send a warning message, he sends a second message to his friend in Augusta: "Do not tell him. Keep quiet." Omar arrives unwarned and is killed by the cousins.

Under the majority's rule, Devin is most likely criminally liable as what?

Explanation. The majority held that a person may be constructively present as a principal in the second degree when, though physically absent, he performs acts in furtherance of the homicide that actually facilitate it, such as preventing warning to the victim. Prior preconcert is unnecessary where liability rests on actual facilitation rather than encouragement by known presence. Nor is but-for causation required; it is enough that the act made the killing easier or deprived the victim of a chance of life.