State v. Wilson

The opinion of the Supreme Court deals with the questions therein discussed in a satisfactory manner. It is, however, urged that the court failed to consider the question whether, under an indictment charging the defendant with the use of instruments to procure a miscarriage, he could be convicted if he did not actually participate in the use of the instrument *468either by being present, aiding and assisting, or by being in a position where he could give direction as to the nse of the instrument. We think that in a case of misdemeanor, where all are liable as principals, the defendant may be convicted under an indictment charging him with the actual commission of the •criminal act, although he was not personally present, and would, in a case of a common law felony, be liable only as an accessory. The reason is that such an indictment charges the defendant according to the legal effect of the offence. In this case, the defendant is in legal effect guilty of using the instrument for the criminal purpose. The question is discussed and authorities cited in 1 Russ. Cr. *128, note n; citing Reg. v. Clayton, 1 C. & K. 128. The judgment must therefore be affirmed.

For affirmance—The Chancellor, Swayze, Trenchard, Parker, Bergen, Minturn, Bogert, Vredenburgh, Vroom, JJ. 9.

For reversal—Rone.