Whiting was convicted under the second count, which charged him as an accessory before the fact — that he "did counsel, incite, procure, abet and command the said Young Farris, the said robbery and felony in the form and manner aforesaid to do and commit." The third count, charging him as a principal in the second degree, that is, with being present, aiding and abetting, etc., was evidently abandoned; at least, the verdict ignored this count. I think the evidence would probably have sustained a conviction under this third count, charging Whiting as a principal in the second degree, on the theory of constructive presence, as enunciated in Pope v. State, 84 Fla., 428, 94 So. R. 865. But I do not think it sufficient to sustain the conviction as accessory before the fact under the second count, on which the verdict was based.

While Section 7110 Comp. Gen. Laws (5008 R. F. S.) makes all who "aid" in the commission of a felony, — that is, principals, in the second degree, — and accessories before the fact, punishable with the same punishment prescribed for the principal, and Sec. 7111 Comp. Gen. Laws (5009 Rev. Gen. Stats.) provides for joint indictment, these statutes do not abolish the distinctions between accessories before the fact, and principals in the first and second degrees, and do not authorize the conviction of a person as an accessory before the fact who was indicted as a principal, or vice versa. An accessory before the fact must still be indicted as such. 3 Bishop's Crim. Prac., 39, p. 1227; 1 Rawle C. L. p. 145, Sec. 22; 14 Ann. Cas., 311 note. The succeeding sections, 7111 Comp. Gen. Laws (5009 Rev. Gen. Stats.) shows this. See also Ex parte Bowen 25 Fla. 214, 220, and Bowen v. State, 25 Fla., 645; Flynn v. State, 86 Fla. 467. *Page 699

The definitions and distinctions at common law are tersely stated in the Albritton v. State, 32 Fla. 358, 13 So. R. 955; "An accessory before the fact is one who, though absent at the time of the commission of a felony, doth yet procure, counsel, command and abet another to commit such felony. An accessory after the fact is one who, when knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, whether he be a principal or an accessory before the fact. Principals in the second degree are those who are present, aiding and abetting at the commission of the act." Citing Montague v. State, 17 Fla. 652.

Sections 7110, 7111 and 7112 of Comp. Gen. Laws (5008-9-10 Rev. Gen. Stats.) appear under a chapter entitled "Principals and Accessories." Sec. 7110 reads as follows:

7110. (5008). ACCESSORY BEFORE THE FACT. — Whoever aids in the commission of a felony, or is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.

Section 7111, reads:

7111. (5009). INDICTMENT AND PUNISHMENT. — Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice; and in the last mentioned *Page 700 case may be punished in the same manner as if convicted of being an accessory before the fact. (Id. Par. 4.)

My view is that Section 7110, in spite of its head line, deals with two classes, which it makes punishable the same as principals in the first degree — that is:

(1) "Whoever aids in the commission of a felony, or

(2) is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed."

It could not have been intended by this statute to provide that one who aids in the commission of a felony is an accessory before the fact. Such a one is a principal in the second degree. The succeeding section repeats the same definition of an accessory before the fact as "Whoever counsels, hires, orotherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact," etc.

Section 7112 Comp. Gen. Laws relates to accessories after the fact, and is not pertinent here.

The evidence here is probably sufficient to show that Whiting was aiding Weaver and Farris in the commission of the robbery, in that he was nearby in his automobile to render assistance if necessary, or to warn them of the approach of officers, and thus constructively present, aiding and abetting in the commission of the offense, and hence a principal in the second degree, but there is no evidence from which it could be inferred that he counselled, or advised, or incited, or in any way procured, them to commit the crime. The evidence is as consistent with the theory that they procured him to help them commit the offense, as that he procured them to do it. The word "abet" as used in the indictment is in the sense of counselling or *Page 701 inciting the principal to commit the act; not in the sense of aiding in the actual deed when committed. I think therefore the case should be reversed, as to plaintiff in error Whiting.