State ex rel. Attorney Gen. v. Tally

102 Ala. 25, 15 So. 722 (1893)



The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts, words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.


An impeachment proceeding against respondent judge  was commenced by an information filed on the part of the state by the attorney-general. The first count charged willful neglect of duty while in office, in that the judge had the opportunity to intervene in his official capacity to prevent a murder and willfully failed and neglected to do so. The second count charged complicity in the murder. The court did not find that the judge had any knowledge of the intention of the killers before or at the time of their departure and therefore the first count was not proved, so that he was not guilty of the charge of willful neglect of official duty. However, the evidence did show that the judge kept a watch and prevented a warning from being sent to the murder victim.  The court found that he aided and abetted the murder and adjudged that he was guilty of murder, so that judgment deposing him from office was entered.


Was there sufficient evidence showing that respondent was guilty of aiding and abetting the murder?




In removing the judge from office, the court recognized the rule of conviction beyond a reasonable doubt was applicable. As the judge had no actual knowledge of the intent of the murderers at the time they left his presence to accomplish their deed, he was not guilty of the charge of willfully neglecting his duty as a magistrate in not exercising the power the law had clothed him with to stay their hands. However, the court found him guilty of the charge of aiding and abetting the murder, as when he had full knowledge of their intentions, he kept a watch and sent a message preventing a warning from reaching the victim. The court held that one could be guilty of murder by aiding and abetting if his actions prevented the deceased from exercising one final chance at survival, even though it was likely that the result would have been the same without his actions. He was constructively present, and thus guilty. The court specified that their conclusion was not to influence criminal murder charges still pending.

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