aiding and abetting at the commission of the deed (t). This presence need not be actual; it may be constructive. That is, it will suffice if the party has the intention of giving assistance, and is sufficiently near to give the assistance; as when one is watching outside, while others are committing a felony inside, the house.. There must be both a participation in the act and a community of purpose (which must be an unlawful one) at the time of the commission of the crime. So that, as to the first point, mere presence or mere neglect to endeavour to prevent a felony will not make a man a principal: as to the second, acts done by one of the party, but not in pursuance of the arrangement, will not render the others liable.

The distinction between principals of the first and of the second degree is not a practically material one, inasmuch as the punishment of offenders of either class is generally the same.

Accessories are those who are not (a) the chief actors in the offence, nor (b) present at its performance, but are some way concerned therein, either before or after the fact committed (u).

stitutes an

fact.

Accessory before the fact.- One who, being absent at What conthe time when the felony is committed, yet procures, accessory counsels, commands, or abets another to commit a before the felony (a). This may be done not only by direct command or counsel, but also by expressing assent or approbation of the felonious design of another. But the bare concealment of a felony about to be committed does not make an accessory. It is not necessary

(t) Principals in the second degree are frequently termed aiders and abettors; sometimes also accomplices. The latter term, however, may include all participes criminis.

(u) 4 Bl. 35.

(x) 1 Hale, P. C. 615.

What such accessory is

that there should be any direct communication between the accused and the principal; as if A. requests B. to procure the services of C. in order to murder D.

The accessory will be answerable for all that ensues answerable for, upon the execution of the unlawful act commanded, at least for all probable consequences; as, for instance, if A. commands B. to beat C., and he beats him so that he die, A. is accessory to the murder. But if the principal intentionally commits a crime essentially different from that commanded, the person commanding will not be answerable as accessory for what he did not command. Thus, if A. commands B. to break into C.'s house, and B. sets fire to the house, A. cannot be convicted of the arson. But a mere difference in the mode of effecting the deed, or in some other collateral matter, will not divest the commander of the character of accessory if the felony is the same in substance. Thus, if A. commands B. to kill C. by poison, and he kills him with a sword, A.'s command suffices to make him an accessory.

Accessories before the fact in manslaughter.

Trial of accessories before the fact.

With regard to manslaughter-As a rule the offence is sudden and unpremeditated, and this view of the nature of the crime having been taken, it has been said that there can be no accessory before the fact in manslaughter. But in many cases there is deliberation, though it is not accompanied by an intention to take away life. It is easy to present a case in which there may be an accessory before the fact to manslaughter. A. counsels B. to mischievously give C. a dose of medicine merely to make him sick, and C. dies in consequence; A. is guilty as an accessory before the fact to the manslaughter (y).

As to the trial of those who command, counsel, or procure the commission of a felony.-Until a recent

(y) R. v. Gaylor, 7 Cox, 253.

date it was the rule that such a person could not be tried without his own consent, except at the same time with the principal, or after the principal had been tried and found guilty. He was merely an accessory, and therefore he could not be tried before the fact of the crime was established. Now two courses are open to the prosecution; either (a) to proceed, as formerly, against the person who counsels, &c., as an accessory before the fact with the principal felon, or after his conviction; or (b) to indict the counsellor for a substantive felony (for to that his offence is declared by the statute to amount), and this may be done whether the principal has or has not been convicted, and although he is not amenable to justice. The punishment in either case is the same. If one of these two modes has been adopted, of course the offender cannot be afterwards prosecuted in the other (z). It is also provided that an accessory before the fact may be indicted, tried, convicted, and punished in all respects as if he were a principal felon (a). To convict of the substantive felony under this Act, it is still necessary to prove that the principal deed has actually been committed. Soliciting and inciting to the commission, if the deed is not committed, is only a misdemeanor.

stitutes an

Accessory after the fact.-One who, knowing a felony What conto have been committed by another, receives, relieves, accessory after comforts, or assists the felon (b). What is required to the fact. make a person an accessory after the fact? (a) There must have been some felony committed and completed; (b) the party charged must have had notice, direct or implied, at the time he assists, &c., the felon, that he had committed a felony; (c) he must have done some act to assist the felon personally. It will suffice if there has been any assistance given in order to hinder the felon's apprehension, trial, or punishment; for example,

Receivers, how tried.

Wife not an

the fact.

́concealing him in the house, supplying him with horse or money to facilitate his escape. But merely suffering the principal to escape will not make the party an accessory after the fact (c).

Receiving stolen goods, knowing them to have been stolen, is generally treated as a separate offence; the receiver being convicted of a felony, misdemeanor, or summary offence, according as the stealing of the property is a felony, misdemeanor, or offence punishable on summary conviction (d). If, however, the stealing, obtaining, &c., is a felony, the receiver may be indicted either as an accessory after the fact, or for a substantive felony (e).

We have noticed (ƒ) that, as a rule, the wife is proaccessory after tected from criminal liability for acts committed in the presence of her husband. Much more, then, can she claim this immunity when the offence with which she is charged is that of receiving and assisting her husband. There is no exemption in respect of any other relation. Even the husband may be convicted for assisting his wife.

Accessory after

the fact, how tried.

An accessory after the fact to a felony may be tried in the same manner as an accessory before the fact; that is, either as an accessory with the principal, or after his conviction, or as for a substantive felony, independently of the principal (g). He is, in general, punishable with imprisonment for any term not exceeding two years (with or without hard labour), and may also be required to find security for keeping the peace, or, in default, to suffer additional imprisonment

for a period not exceeding one year (h). But an accessory after the fact to murder may receive sentence of penal servitude for life, or for any less term to five years, or imprisonment not exceeding two years (i). A receiver of stolen goods is liable to a maximum punishment of penal servitude for fourteen years (j).

It has been observed that the distinction of principals and accessories is found only in the case of felonies.

As to treason-Both every kind of incitement which In treason, all are principals. in a felony would make a man an accessory before the fact, and every kind of assistance which would make him an accessory after the fact, in treason will make the offender a principal traitor. This rule is said to exist propter odium delicti.

meanors, no

As to misdemeanors-Those who aid or counsel the In misdecommission of the crime are dealt with as principals (k); accessories. those who merely assist after the misdemeanor has been committed are not punishable, unless indeed the act amount to the misdemeanor of rescue, obstructing the officer, or the like (7).

The following outline of the present state of the Recapitulation. law on the subject of degrees of guilt may serve to

place the matter in a clearer light:

There are no accessories in treason or misdemeanors, only in felonies.

Principals, whether of the first or second degree, are virtually dealt with in the same way.