so the house of D. is also burnt, A. is accessary to the burning of D.'s house. And if the offence commanded be effected, although by different means from those commanded, as, for instance, if J. W. hire J. S. to poison A., and instead of poisoning him he shoot him, J. W. is, nevertheless, liable as accessary.2

3

As we have already seen, the common law has recently been changed in several States so as to treat accessaries before the fact as principals. In many jurisdictions, however, the offences continue distinct, so that acquittal as a principal does not bar a prosecution as accessary.*

where there is no evidence that the is determined by another. But, illogprincipal committed the crime charged. ical as it may be, we punish both. Armstrong v. State, 28 Tex. App. 526, Each, we say, is responsible for the 1890. act, and by no other view could public justice be subserved. Unless the per

1 Ibid.; Fost. 370.

' Ibid. 369; State v. Tazwell, cited petrator is responsible, there is no law infra, ¿ 226.

3

Supra, 205. Watson v. State, 21 Tex. App. 598, 1886; People v. Rozelle, 78 Cal. 84, 1889; Territory v. Guthrie, 2 Idaho, 398, 1888; Atterberry v. State, (Ark.) 20 S. W. 411, 1892; Spies v. People, 122 Ill. 1, 1887.

See Whart. Cr. Pl. & Pr. ? 458; Com. v. Pettes, 126 Mass. 242, 1879; State v. Buzzell, 58 N. H. 257, 1878.

by which injuries can be redressed; unless the instigator is responsible, there is no law by which right can be vindicated. In other words, if the perpetrator is not made responsible, there can be no retribution for wrong acts; if the instigator is not made responsible, there can be no retribution for wrong agents. In the one case there would be no responsibility for The complication in the law of conduct, in the other there would be accessaryship is in some sense attrib- no responsibility for impulse. We utable to the circumstance that it therefore punish the instigator as if involves one of the most difficult he were free while the perpetrator metaphysical problems. If the will is was coerced, while we punish the perfree, how can we punish the instigator petrator as if he were free and the of a crime as equally guilty with the instigator did not exist. Nor is this perpetrator? The latter, it is assumed, strange, for the same solution is acacted with perfect freedom; we may cepted by us in all other lines of moral therefore punish the instigator for giv- judgment. We condemn the tempted, ing bad counsel, as we would punish when he yields on the ground that he the publishers of bad books, but we yields voluntarily; we condemn the cannot charge him with doing an act tempter on the ground that he caused at whose commission he was not pres- the yielding. Sir W. Hamilton treats ent, which he had no power to order, this as one of the illustrations of the but whose performance is imputable practical harmony between necessity to the free and independent will of and free will. If we reject determinanother person. On the other hand, ism, there is no law by which man can if the will is necessitated, we certainly be ruled; if we reject free agency, cannot punish the agent whose action there is no man to be ruled by the

Several

may be

combined.

§ 225 a. As has been elsewhere noticed,' cases frequently occur in which two or more instigators coöperate in procuring instigators one or more agents to act in the perpetration of a crime. Such cases may be classified as follows: (1) The instigators may act concurrently with the perpetrator. In such case the ordinary law of conspiracy applies. The parties must be intentional participants in a common unlawful design. It is not enough that they are casual, incidental coöperators. To charge a party with an intentional coöperation, he must know that the others are working with him for the same criminal purpose, and he must contribute something to the common effort. If this is not done, he cannot be regarded as an instigator, or accessary before the fact. (2) Instigation may not be concurrent, but successive .In other words, A. may instigate B. to instigate C.3 In such case, supposing the causal relation be established, and C. is really induced to act by A., through B.'s agency, A. is as much responsible as if he induced C. to act by letter.

When procurement is by an intermediate agent, the accessary leaving it to such agent to find a perpetrator, it is not necessary that the accessary should be cognizant of the name of the perpetrator.1

Must be

§ 226. The procurement need not be tactual, it being sufficient if one or more persons become the medium through whom causal con- the work is done. It makes no matter how long a time nection. or how great a space intervenes between the advice and the consummation, provided that there is an immediate causal connection between the instigation and the act. In cases, however,

law. And in our doctrine as to principal and accessary, we treat the principal both as free and as coerced; as free when we prosecute him individually, as coerced when we prosecute his instigator. The topic, in this connection, has been discussed by Volkmann, Grundriss der Psychologie, 1856, pp. 374, 397; Wahlberg, das Princip der Individualisierung in der Strafrechtspflege; and by Drobisch, in die moralische Statistik und die menschliche Willensfreiheit, p. 28. See Geyer in Holzendorff's Strafr. ii. 340, who takes the necessitarian side of the controversy.

9 Cent. L. J. 205.

2 See Holtz. Strafr. ii. 377.

3 McDaniel's Case, Fost. 121; Com. v. Glover, 111 Mass. 395, 1873.

* R. v. Cooper, 6 C. & P. 535, 1833; R. v. Williams, 1 Den. C. C. 39, 1844.

5 Fost. 125; R. v. Somerset, 19 St. Tr. 804; R. v. Cooper, 5 C. & P. 535, 1833. Supra, 225 a.

See infra, ? 280.

R. v. Sharpe, 3 Cox C. C. 288, 1849; R. v. Blackburn, 6 Cox C. C. 333, 1854; Com. v. Glover, 111 Mass. 395, 1873; Oliver v. Com., 77 Va. 590, 1880.

In Saunder's Case, Plowd. 475,

where the instigation consists in the furnishing aid, it is not necessary that the specific materials or machinery contributed by the

1576; 1 Hale P. C. 431, as condensed highway robbers have said that they by Sir James F. Stephen (Steph. Dig. were led into crime by reading Jack art. 42, 5th ed.): "A. advises B. to Sheppard; but the author of Jack murder C. (B.'s wife) by poison. B. Sheppard was not an accessary before gives C. a poisoned apple, which C. the fact to the robberies to which he gives to D. (B.'s child) B. permits thus added an impulse. Under the D. to eat the apple, which it does, head of "counsel" may be included and dies of it. A. is not accessory to advice and instruction as to the modes the murder of D." "This decision," of committing particular crimes, e. g., adds Sir James F. Stephen, "is of pocket-picking. General instruction, higher authority than Foster's dicta, it is true, could not be "counselling " and marks the limit to which they in the sense before us; though it is extend, if it does not throw doubt otherwise with special instructions as upon them." The proper solution in such case is that A. is indictable for an attempt to kill C.; but that there is no causal connection between his act and the killing of D., see Whart. on Neg. 290, 91; supra, ?? 160, 161.

to the management of a particular case. Persuading and tempting to a particular crime fall under this head. The modes in which this kind of counselling may be manifested are numerous. The counsel need not be exclusively in words. It may consist,

Modes of Instigation.-"Procure" is the first term used in the ordinary at least in part (e. g., Faust and Medefinition of our old accessaryship phistopheles), in the exhibition of before the fact. The most obvious some object of desire. It is possible, mode of procuring is by hiring. The also, to conceive of cases in which instigator takes the agent into his ser- there is no immediate communication vice, and engages him for a reward between the seducer and the seduced. to commit the proposed crime. The Third persons may be used as inno"procuring," however, must be before cent or compulsory go-betweens. Infra, the act. It has been much discussed 231. whether promising a reward to a person already resolved on the act constitutes an instigation. But the better opinion is that it does in cases where the perpetrator is strengthened in his purpose by the reward.

"Command" is a term borrowed from the Roman mandatum, which is frequently used in this connection. Viewing the term nakedly, it describes few cases of accessaryship. Men are rarely to be found who would commit "Counselling," to come up to the a crime because "commanded" to by definition, must be special. Mere another, unless they are under special general counsel, for instance, that all obligations to such other. Among property should be regarded as held such obligations we may primarily in common, will not constitute the notice that of wife to husband, which party offering it accessary before the the law recognizes in some cases as a fact to a larceny; "free-love" publi- defence to the wife when on trial. cations will not constitute their Next to this may be enumerated the authors technical parties to sexual obligation of child to parent, of seroffences which these publications may vant to master, or subordinate to have stimulated. Several youthful superior. These obligations do not

accessary should have been used by the principal.

Nor does it

matter whether the instigator counselled the perpetrator directly or through an intermediate agent.

Silent ac

is not

§ 227. Counselling is said in the old book to be either direct or indirect; direct consisting in express counsels, indirect in quiescence the intimation of approval or desire. But concealment counsel- of the knowledge that a felony is about to be committed does not constitute such accessaryship,3 nor does mere momentary acquiescence in the proposed felonious plan. But any specific contribution of advice, afterward acted on, constitutes the offence. It is necessary, as has been seen, that the solicitation be

ling.

...

constitute a legal excuse unless the of facts which operate as a motive to perpetrator acts under compulsion- B. for the murder of C. It would be vis compulsiva-or unless the com- an abuse of language to say that A. mand generates in him an error of had killed C., though no doubt he has fact which induces him to regard the been the remote cause of C.'s death. act as innocent. Military command, . . . In Othello's case, for instance, I also, may be an excuse to the sub- am inclined to think that Iago could altern, when he acts bona fide under not have been convicted as accessary the command, and not in satisfaction before the fact to Desdemona's murof any special private malice of his der, but for the single remark: 'Do own. Supra, 94. A police officer is it not with poison, strangle her in her in the same way protected, provided bed."" 3 Steph. Hist. Crim. Law, 8. he acts within the range of his office, 1 State v. Tazwell, 30 La. An. Pt. and executes what he believes to be II. 884, 1878. an official duty for a public end. It is otherwise when he knowingly executes a command issued for extortionate or other unlawful purposes. A command need not be in words. It may be in signs. See Holtzen. Strafr. ii. 353.

2

1 Hale, 616.

3 Noftsinger v. State, 7 Tex. App. 301, 1880; Rucker v. State, Ibid. 549, 1880; Alford v. State, (Tex.) 20 S. W. Rep. 553, 1892.

4

1 Hale, 616; 2 Hawk. c. 29, s. 23; supra, 211 a.

B. and C. agree to fight a prize fight

"Advising" may be by a process of deception, by a misrepresentation for a sum of money; A., knowing of facts. A. contrives to induce B. their intention, acts as stakeholder. to believe he has received an in- B. and C. fight, and C. is killed. A. jury from C., which it is B.'s duty to is not present at the fight, and has no avenge by taking C.'s life. Sup- concern with it except being stakeposing A. to act in this way with the holder. Even if in such a case there malicious purpose of killing C. by the can be an accessary before the fact, A. agency of B, and to then specifically is not accessary before the fact to the advise the killing of C., A. is guilty manslaughter of C. Steph. Dig. art. at common law as accessary before 40 (5th ed.), citing R. v. Taylor, L. the fact, or, under our recent statutes, R. 2 C. C. 147, 1875. See other cases as principal. 9 Cent. L. J. 204. on prize fights, cited infra, & 372. "Suppose, for instance, A. tells B.

made either directly or indirectly, to the person committing the act.1 But knowingly to invite a person to a place so that he may be there murdered constitutes, when he is murdered accordingly, the offence.2 Accessaryship cannot be based on negligence.3 That sympathy does not constitute coöperation has been already seen.*

§ 228. If the advice of the accessary be countermanded before it

does not

offence.

operates in any way, he is relieved from responsibility; Counterand if an instigator, when withdrawing, not merely ex- manded presses his disapproval of the crime, but takes all the advice measures in his power to prevent its consummation, and constitute such measures fail because of casus, or some new intermediate impulse, then his criminality ceases. But it does not cease simply because, after starting the ball, he changes his mind, and tries, when too late, to stop it. To emancipate him from the consequences, not only must he have acted in time, and done everything practicable to prevent the consummation, but the consummation, if it takes place, must be imputable to some independent cause. On the other hand, it is plain that when the instigator changes his mind, after having gone as far as an attempt, and abandons a further prosecution of the design, he is indictable for the attempt. It has

1

R. v. Blackburn, 6 Cox C. C. 333, considered word (as was alleged by 1854. Queen Elizabeth to have been the

2 R. v. Manning, 2 C. & K. 887, case with her order for the execution

1849.

3

Supra, & 129.

of Queen Mary), and a chain of cool and deliberate directions. But these

a

When the question of punishment distinctions do not go merely to the comes up, it is not unimportant to in- question of degree of punishment. quire to what extent the perpetrator The amount of potency with which was overborne by the superior will of the instigation was applied has much the instigator, and how far the latter to do with determining whether there is to be considered as the exclusive was really a causal relation between contriver of the crime. As has been the instigation and the criminal act. well said, when a bandit whose trade The former may have been merely a is assassination, offers himself for this strong expression of enmity, or purpose to a rich grandee, the case strong opinion as to the right to do a is very different from that of an un- particular thing, without any intensophisticated and comparatively in- tion that the criminal act should reagent who is led by the sult from the expression. If so, the protracted and subtle wiles of a criminal act is not imputable to the Mephistopheles into a path of guilt alleged instigator. Cent. L. J. 1879, he never would otherwise have ap- p. 184. proached. Geyer, in Holtz. Straf. ii. 353. A distinction, also, is to be made between a single hasty and ill

nocent

4

Supra, & 211 d.

5 Supra, & 187; 1 Hale, 618.