OUJI-CR 2-6
AIDING AND ABETTING - PRINCIPAL DEFINED
Merely standing by, even if standing by with knowledge concerning the commission of a crime, does not make a person a principal to a crime. Mere presence at the scene of a crime, without participation, does not make a person a principal to a crime.
One who does not actively commit the offense, but who aids, promotes, or encourages the commission of a crime by another person, either by act or counsel or both, is deemed to be a principal to the crime if he/she knowingly did what he/she did either with criminal intent or with knowledge of the other person's intent. To aid or abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of that criminal offense.
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Statutory Authority: 21 O.S. 1991, §§ 171, 172.
Notes on Use
The definition of "criminal intent" in OUJI-CR 2-9, infra, should accompany this Instruction.
Committee Comments
At common law, the parties to a felony were classified in accordance with their degree of participation. Principals were classed as either first or second degree; accessories were designated as either before or after the fact. The principal in the first degree was the criminal actor himself, the person whose conduct directly engendered the criminal result. An individual who aided and abetted the principal in the first degree was punishable either as a principal in the second degree or as an accessory before the fact, depending upon whether the individual was present, either actually or constructively, at the commission of the crime. An accessory after the fact was an individual who, cognizant of the completed felony, rendered aid and comfort to the felon for the purpose of hindering his apprehension, conviction, or punishment. W. LaFave and A. Scott, Criminal Law § 495, at 498 (1972); R. Perkins, Criminal Law 643 (2d ed. 1969).
In Oklahoma, these distinctions have been statutorily abolished. Those formerly classified at common law as principals in the first and second degree, as well as those classified as accessories before the fact, are statutorily defined as principals. Those classified at common law as accessories after the fact are statutorily denominated as accessories. Wilson v. State, 1976 OK CR 167, 552 P.2d 1404; Wishard v. State, 5 Okl. Cr. 610, 115 P. 796 (1911); Drury v. Territory, 9 Okl. 398, 60 P. 101 (1900).
An aider and abettor does not personally need to intend to commit a crime to be liable as a principal. A person may also be liable as a principal for aiding and abetting the perpetrator knowing of the perpetrator's intent to commit the crime. Conover v. State, 1997 OK CR 6, 40-47, 933 P.2d 904, 914-16. As the Court of Criminal Appeals explained in the Conover case, restricting liability to a person who intended to commit a crime would eliminate aiders and abettors, because a person who intended to commit a crime would be liable as a perpetrator or principal in the first degree. Id. at 916. Because Oklahoma provides that aiders and abettors are liable as principals, criminal liability must extend beyond persons who intend to commit a crime to persons who aid and abet the perpetrator knowing of the perpetrator's intent to commit the crime.
Participation in the commission of a crime remains a question of fact, and may be established by circumstantial proof. Morrison v. State, 1974 OK CR 18, 518 P.2d 1279; Dean v. State, 1972 OK CR 283, 509 P.2d 1365; Love v. State, 1969 OK CR 16, 449 P.2d 729. However, more than consent to, or acquiescence in, the criminal acts of another is required to constitute participation; consent or acquiescence involves cognitive or mental activity which, unless communicated to the perpetrator of the offense, does not serve to aid and abet him in its commission. Anderson v. State, 66 Okl. Cr. 291, 91 P.2d 794 (1939); Moore v. State, 4 Okl. Cr. 212, 111 P. 822 (1910): Drury v. Territory, 9 Okl. 398, 60 P. 101 (1900). The Court of Criminal Appeals addressed the issue of acquiescence in the context of homicide in the following terms:
[N]o one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity. When the accused is present and aiding and abetting another in its commission, he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction or connect him criminally with the killing.
Polk v. State, 26 Okl. Cr. 283, 301, 224 P. 194, 206 (1924) (citation omitted).
Although 21 O.S. 1991, § 174, restates the common law position that there can be no accessories to a misdemeanor, an individual who aids in the commission of a misdemeanor may be charged, tried, and convicted of that crime as a principal. Hishaw v. State, 1979 OK CR 140, 603 P.2d 1167; Patterson v. State, 67 Okl. Cr. 98, 92 P.2d 1079 (1939).
(2000 Supp.)