CHAPTER IX.

ACCESSARYSHIP, AGENCY, MISPRISION.

Confederacy must be real, III. ACCESSARIES BEFORE THE FACT.

Relative guilt of accessary and IV. ACCESSARIES AFTER THE FACT.

principal, 230.

Assistance must be rendered
knowingly and really, 231.
Detectives not accessaries,
¿ 231 a.

May be accessary before the

fact to manslaughter, 232. Accessary before the fact need

not be originator, ? 233.
Quantity of aid immaterial,
? 234.

Conditions of time immaterial,
? 235.

Grade of guilt not necessarily
the same, 236.
Conviction of principal no

longer a prerequisite, 237.
Indictment must particularize

offence, 238.

An accessary after the fact is

one who subsequently assists or comforts the felon, & 241. Knowledge of principal's guilt is essential, 242. Wife is not so liable, 243. Conviction of principal primâ facie evidence of guilt, 244. Indictment must be specific,

? 245.

V. PRINCIPAL'S LIABILITY FOR
AGENT.

Where the agent acts directly
under principal's commands,
principal liable, ? 246.

So when agent is in line of principal's business, ? 247. Non-resident principal infraterritorially liable, § 248.

Common

law recently modified

I. STATUTORY CHANGES.

§ 205. By the English common law, whenever there is a statutory distinction of punishment between principals in the first and principals in the second degree, a party charged as principal in the first degree cannot be convicted on eviby statute. dence showing him to be principal in the second degree. By the same common law, there can be no conviction of an accessary on an indictment charging him as principal. The obstructions of justice caused by these subtleties have long been deplored; and while in several of the States of the American Union it is already provided by statute that accessaries before the fact are to be proceeded against as principals ; in other States, and in England, the change will probably not be long delayed. So far as concerns principals in the first and principals in the second degree, the dis

1 In New York, by the Penal Code of 1882, 30, accessaries before the fact are made principals, while accessaries after the fact include, in addition to the common law definition, one who harbors an offender having reasonable ground to believe such of

fender is liable to arrest, or has been arrested, is indicted or convicted, or has committed a felony. So in Kansas. State v. Mosley, 31 Kan. 355, 1883. And Alabama. Wicks v. State, 44 Ala. 398, 1870.

tinction is now almost universally obliterated. In the present chapter, however, in view of those jurisdictions in which the common law in this relation remains, the topic will be discussed as at common law.

II. PRINCIPALS.

in first de

gree is actual perpetrator.

Presence

sary when

§ 206. A principal in the first degree, at common law, Principal is one who is the actual perpetrator of the criminal act.2 § 207. To constitute, however, this grade. of offence, it is not necessary that the party should have committed the act with his own hands, or be actually present when the offence is consummated; for if one lay poison purposely for another, who takes it and is killed, he who lays the poison, though absent when it is taken, is a principal in the first degree. Such, also, is the case with a party who maliciously turns out a wild beast intending to kill any one whom the animal may attack. A party, also, who acts through the medium of an innocent or insane medium, or a slave, is guilty, though absent, as principal in the first degree;"

1 According to Sir J. F. Stephen, "there was (by the old law) no distinction between principals and accessaries in treason and misdemeanor, and the distinction in felony made little difference, because all alike, principals and accessaries, were felons, and as such punishable with death." 2 Hist. Crim. Law, 231.

When the distinction between accessaries before the fact and principals has been abolished, an indictment is not bad which charges an accessary as principal. State v. Stacy, 103 Mo. 11, 1891.

21 Hale, 233, 615; Stephen's Dig. art. 36 (5th ed.); Rountree v. State, 10 Tex. App. 110, 1880; Cook v. State, 14 Ibid. 96, 1 883.

See Pinkard v. State, 30 Ga. 757, 1860; Berry v. State, 4 Tex. App. 492, 1878; Sharp v. State, 6 Ibid. 650, 1879; Smith v. State, 37 Ark. 274, 1880. Infra, 219.

VOL. I.-15

not necescausal connection is diate, e. g., agent is

imme

when

irrespon

sible.

• Vaux's Case, 4 Co. 44 b; Stephen's Dig. art. 36 (5th ed.); Fost. 349; R. v. Harley, 4 C. & P. 369, 1830; R. v. Kelly, 2 C. & K. 379, 1847; R. v. Holloway, 2 Den. 287, 1870; People v. Bush, 4 Hill, 133, 1833. See Pinkard v. State, 30 Ga. 757, 1860; Green v. State, 13 Mo. 382, 1850.

&

5 Fost. 349; 1 Hale, 514.

Supra, 161; R. v. Mazeau, 9 C. P. 676; R. v. Michael, 9 C. & P. 356, 1840; s. c. 2 Mood. C. C. 163; R. v. Clifford, 2 C. & K. 201, 1845; R. v. Bleesdale, 2 C. & K. 764, 1846; Com. v. Hill, 11 Mass. 36, 1814; Adams v. People, 1 Comst. 173, 1848; State v. Fulkerson, Phillip, (N. C.) 233, 1867.

71 Hale, 19; 4 Bla. Com. 23; R. v. Giles, 1 Mood. C. C. 166, 1835; R. v. Tyler, 8 C. & P. 616, 1838; Blackburn v. State, 23 Ohio St. 146, 1872.

8 Berry v. State, 10 Ga. 511, 1851. • Supra, ? 161.

225

while he would be guilty only as accessary before the fact at common law were the agent a responsible and conscious confederate.1 Thus, in Sir William Courtney's case, Lord Denman, C. J., charged the jury: "You will say whether you find that Courtney was a dangerous and mischievous person; that these two prisoners knew he was so, and yet kept with him, aiding and abetting him by their presence, and conferring in his acts; and if you do, you will find them guilty, for they are then liable as principals for what was done by his hand." If, therefore, a child under the age of discretion, or any other person excused from the responsibility of his actions by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of murder or any other crime, the incitor, though absent when the act was committed, is ex necessitate liable for the act of his agent, and a principal in the first degree.

So if A., by letter, desire B., an innocent agent, to write the name of "W. S." to a receipt on a post-office order, and the innocent agent do it, believing that he is authorized so to do, A. is a principal in the forgery; and it makes no difference that by the letter A. says to B. that he is "at liberty" to sign the name of W. S., and does not in express words direct him to do so. But if the agent be aware of the consequences of his act, he is a principal in the first degree, and the employer, if he be absent when the act is committed, is an accessary before the fact."

§ 208. At common law, one indicted as principal cannot be con

1 Infra, & 280.

1845. See, also, R. v. Palmer, 1 Russ. 21 Hawk. c. 1, s. 7; R. v. Mears, 1 Cr. 160, 1804; Stephen Crim. Law, art. Boston Law Rep. 205. 37 (5th ed.).

State v. Learned, 41 Vt. 585, 1869; Blackburn v. State, 23 Ohio St. 146, 1872; People v. Miller, 5 W. Coast R. (Cal.) 598, 1885.

Fost. 340; 1 East P. C. 118; 1 Hawk. c. 13, s. 7; R. v. Palmer, 1 N. R. 96; 2 Leach, 978, 1804; R. v. Giles, 1 Mood. C. C. 166, 1835; R. v. Michael, 2 Mood. C. C. 87, 1835; 9 C. & P. 356, 1840; R. v. Manley, 1 Cox C. C. 104, 1844; Com. v. Hill, 11 Mass. 136, 1814; Collins v. State, 3 Heisk. 14,

1870. Supra, & 161.

5 R. v. Clifford, 2 C. & K. 201,

• R. v. Soares, R. & R. 25, 1802; R. v. Stewart, R. & R. 363, 1818; Wixon v. People, 5 Park. C. R. 119, 1860; or, if he be present, a principal in the second degree. Fost. 349. See R. v. Manley, 1 Cox C. C. 104, 1844; Montague v. State, 17 Fla. 662, 1880. One who assists in the commission of a crime is not relieved because his acts were done under threats, unless the danger be to life or member and be immediate. Burns v. State, 89 Ga. 527, 1892.

victed on proof showing him to be only an accessary be- Accessary fore the fact, nor the converse.2

respon

before the fact cannot be con

principal.

§ 209. A non-resident party, though at the time an in- victed as habitant of a foreign State, may be at common law sible as principal for his agent's criminal acts not amount- Non-resiing to felonies, in a particular jurisdiction,3 while as to felonies he would be an accessary before the fact. And a party who, thirty miles off, and in another county, signals to another, by fire on a mountain, when to commit a highway robbery, is principal in the robbery.'

dent party may be

liable for

agent's

acts.

§ 210. If a husband and wife commit a murder jointly, they may be regarded, so it has been held, as co-principals, on the Wife not ground that the doctrine of presumed coercion does not ordinarily apply to murder. And so a wife may be convicted, it is co-principal with said, as an accessary before the fact to the husband. But husthe weight of opinion is to require proof of independent consent on part of the wife."

band.

III. PRINCIPALS IN THE SECOND DEGREE.

in second Principals degree are

those

present actively aid

ing and

§ 211. Principals in the second degree are those who are present aiding and abetting the commission of the offence. As has been elsewhere shown, the assistant (principal" in the second degree) is distinguished from the principal in the first degree in this, that the latter directs the unlawful act, the former assists it; the action of the latter is primary, that of the former is subsidiary. Hence the principal in encouragthe first degree is spoken of by the old writers as causa principalis, while the principal in the second degree is spoken of as causa secundaria, or secondary cause. The principal in the second degree, or assistant, is distinguished from the accessary before the fact, not merely because the former is present, and the latter absent,

1 R. v. Fallon, 9 Cox C. C. 242, 1862; State v. Wyckoff, 2 Vroom, 65, 1866; Hughes v. State, 12 Ala. 458, 1848; Josephine v. State, 39 Miss. 613, 1866 Walrath v. State, 8 Nebr. 80, 1878. See for other cases infra, 238-245.

State v.

21 Leach, 515; 1 East P. C. 352; Larkin, 49 N. H. 39, 1868. See State v. Dewer, 65 N. C. 572, 1871; Hat ely v. State, 15 Ga. 346, 1854.

3 Infra, 278-280.

ing.