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been argued that if the frustration of the attempt is due to his interposition, consequent upon his repentance, he is relieved from all prosecution. But it is hard to see how his repentance, subserpuent to the attempt, can cancel his responsibility for the guilt of the attempt; though it would be otherwise if he intervened prior to the attempt.' § 229. While an accessary before the fact (or instigator) is respon

sible for all crimes incidental to the criminal misconduct Accessary not liable he counsels, or which are among its probable consefor collat

quences, it is otherwise as to collateral crimes not among such incidental and probable consequences.

eral crimes.

Cal. 550,


supra, % 213.

1 Cent. L. J. 1879, p. 203. For is liable for all such acts when done further views, see supra, % 187. in the discharge of the agency or ser.

See supra, & 120; Steph. Dig. art. vice, though these acts were expressly 42 (5th ed.); R. v. Gaylor, 7 Cox C. forbidden by the principal or master. C. 253, 1856.

This rule holds good on the criminal Thus, where A. instigates B. to rob side of the law, so far as concerns inC., and B. murders C. in carrying out dictments for negligence. But it canthe robbery, A. is accessary before not be extended to indictments for the fact to the murder. State v. malicious acts. A. counsels B. to comDavis, 87 N. C. 514, 1882. See, to mit a specific crime. B., in commitsame effect, Stephens v. State, Sup. ting this crime, maliciously commits Ct. Ohio, 1884, citing U. S. v. Ross, 1 another collateral crime, not within Gall. 624, 1814; Stepp v. State, 11 the scope of A.'s counsel, and, it may Ind. 62, 1858; People v. Vasques, 49 be, forbidden by A. A. cannot, at

common law, be convicted of doing 3 Supra, 2 214; People v. Knapp, 26 intentionally and maliciously this colMich. 112, 1872; Lucas v. State, 55 lateral act, which he never intended, Iowa, 221, 1881; Watts v. State, 5 W. and which he had even forbidden. Of Va. 532, 1867. See Foster, 370; 1 negligence in putting these powers in Hale, 687; 3 Inst. 51; Stephens v. his agent's hands, or of negligence as State, (Ohio) 18 Rep. 1881, 1884. incidental to the working of the illegal

The question in the text is consid- instrumentality he put in motion, he ered by me in the Central Law Jour- may be convicted, but not of designnal for 1879, where the views of the ing something he did not design. Of later German authorities are given. negligence he may be certainly conFrom this I condense the following: victed, if the crime, though unforeseen

Suppose the perpetrator, undertak- by him, is incidental to one procured ing to execute the purpose of the in- by him: as when he sends a servant stigator, commits acts, while perform- out to steal property in the night, and ing his mandate, in excess of such pur- the servant, in striking a match, sets pose. Is the instigator responsible for fire to the house. the excess?

Quantitative variations in the mode If we relied solely on the analo- of executing a crime are not to be gies from the civil side of the law, we viewed as excesses in the sense above would say that the principal or master stated. A homicide, for instance, is

§ 230. The question of the relative guilt of the accessary before the fact and the instigator has been elsewhere discussed."

Relative It is argued on the one side that instigation, from the guilt of nature of things, involves more design, premeditation, and princoolness, and intelligence than does perpetration. The cipal. instigator bears to the perpetrator the relation of the seducer to the seduced. The instigator would have perpetrated the crime anyhow; the perpetrator would not have perpetrated it without the instigation. To this it is answered that instigation does not necessarily involve premeditation, but that premeditation is necessarily involved in perpetration. Instigation may consist in the expression of a momentary petulant desire, as was the case with Henry II., when saving he wished he was rid of Becket, or of advice which the adviser himself never expected to have embodied in action. Perpetration, on the other hand, when in obedience to a plan previously entertained, involves not merely premeditation, but action as a realization of this premeditation. Not only is the criminal design harbored, but it is unflinchingly matured and executed. Nor is the relation of instigator and perpetrator always that of seducer and seduced. The relation may be that of confederate with confederate. Each enters into the partnership of crime; and the chief difference between the two is that the instigator is not present at the act which the perpetrator commits. The perpetrator may be as much the seducer of the instigator, as the instigator of the perpetrator.

imputable to the instigator, though As is seen above, the accessary beexecuted with a cruelty in excess of fore the fact is not liable for any that commanded. So if A. directs B. malicious excursions made, outside of to inflict on C. an injury whose prob- the range of the employment, by the able consequences will be death, A., perpetrator. It should be rememas we have seen, is as chargeable, if bered, however, that the instigator death ensues, as is B., with the homi- may often use ambiguous terms: “Get cide. Supra, 2 214. As to minor crimes, me this thing anyhow;" or, “Bring instigation to commit a greater crime me this man alive or dead.” If so, incloses instigation to commit a lesser the instigator is chargeable with any crime. If A., for instance, counsels misconstructions the ambiguity may B. to commit highway robbery, which produce. It is in this sense that results in larceny, A. is accessary be- James II. and Louis XIV. are chargefore the fact to the larceny. But it able with instigation in the attempted is otherwise as to minor offences nọt assassinations of William III. included in the major. Thus coun- 1 See Cent. L. J. for 1879, p. 183; selling to commit larceny would not Ibid. for 1885, p. 6. involve accessaryship to the offence of ? See Oliver v. Com., 77 Va. 590, cheating by cards, though part of the 1880; Cook v. State, 14 Tex. App. 96, same transaction.


Henry's barons, in taunting him with Becket's insults, and offering themselves as the avengers of those insults, may have been the tempters who led Henry to utter the fatal wish, and thus have been the original planners as well as the final perpetrators of the crime to which he gave a hasty intermediate assent. Instigation, therefore, does not necessarily involve origination. The accessary before the fact may be really the agent of the principal. To this it is rejoined that what we have to do with is instigation in its logical sense, as the origination of a crime to be effected through another; and that this involves a double criminality, that of the instigator himself and that of the perpetrator; that the instigator is in this respect a free agent, bringing into effect an act doubly criminal as infringing the rights of the object of the crime, and as steeping in guilt its agent. At common law, the assumption is that the guilt of the perpetrator (principal) is imputable to the instigator (accessary before the fact), and hence the conviction of the latter is to depend on the conviction of the former, as a condition precedent, and must be of the same grade of offence. Where under recent legislation, however, the instigator (accessary before the fact) is treated as principal, there principal and accessary before the fact (or instigator and perpetrator) may, as we will presently see more fully, be convicted of different grades.?

$ 231. The assistance must be rendered knowingly. It is not Assistance necessary, indeed, that the principal should know all the

conditions of the help rendered to him, but it is necessary knowingly for the accessary to know the guilty purpose he contributes and really. to help. The chief of a plot, for instance, is not bound to know a coöperator in order to implicate the latter as accessary; but the coöperator cannot be convicted unless he is shown to have been acquainted with the character of the plot.3 § 231 a. A detective entering apparently into a criminal con

spiracy already formed for the purpose of exploding it is not an accessary before the fact. For it should be remembered that while detectives, when acting as decoys, may

must be rendered

Detectives not accessaries.


1 R v. Tuckwell, C. & M. 215, 1842; 1877; Price v. People, 109 Ill. 109, Keithler v. State, 10 Sm. & M. 192, 1883. See Whart. Cr. Ev. & 410; 1848.

State v. Brownlee, 84 Iowa, 473, 1892; Infra, ??, 232, 236.

People v. Mollins, 10 N. Y. Sup. 130, Supra, % 129.

1888; State v. Baden, 37 Minn, 212, Supra, & 149, where the cases are 1887; but see People v. Bollanger, 71 given. Campbell v. Com., 84 Pa. 187, Cal. 17, 1886.



apparently provoke the crime, the essential element of dolus, or malicious determination to violate the law, is wanting in their case. And it is only the formal and not the substantive part of the crime that they provoke. They provoke, for instance, in larceny, the asportation of the goods, but not the ultimate loss by the owner. They may be actuated by the most unworthy of motives, but the animus furandi in larceny is not imputable to them; and it is in larcenous cases or cheats that they are chiefly employed. They may, however, become liable for negligence in their conduct, when it leads to injuries which prudence on their part might have avoided; as when they instigate an ambush which results in a homicide ;' or when the checks they look forward to as likely to explode a plot, whose execation they advise, are not properly applied. Nor should it be forgotten that if one who silently watches a crime until it ripens is an accessary, then the guilt of accessaryship falls on a parent who watches anxiously but silently a child's course until the period when interposition and warning would be likely to be successful, and on a specialist in science, who, suspecting that there may be some wrongful purpose in preparation in a neighboring laboratory, forbears to give notice of the danger until he sees that it assuredly exists.

Eminently is this the case with persons who, from a sense of duty, or under the direction of the public authorities, watch even as apparent members the progress of conspiracies which could in no other way be exposed.?

$ 232. It has been doubted whether there can be an accessary before the fact to manslaughter, since accessaryship presup- May be acposes premeditation, and premeditation is incompatible cessary bewith manslaughter. But, as will be seen, an instigator fact to may, in hot blood, stimulate a person incensed with an

slaughter. other to execute a deed of vengeance on such other, when the offence of the perpetrator would be only manslaughter; and we may also hold that an instigator may be guilty of murder in instigating another to commit manslaughter by the rash use of danger



supra, 8 149.

1855. Compare 2 Hawk. P. C. p. 444, See Campbell v. Com., 84 Pa. 187, s. 24. See infra, & 236. Bowman v. 1877, cited supra, & 149; Cent. L. J. State, (Tex.) 20 S. W. Rep. 558, 1892, for 1885, p. 5.

but see People v. Weber, (Cal ) 19 Rep. * See R. v. Taylor, L. R. 2 C. C. 617, 1885. 147, 1875; Boyd v. State, 17 Ga. 202,

ous instrumentalities. A fortiori there may be an accessary before the fact to murder in the second degree.?

§ 233. It is not material that an accessary should have originated Accessary

the design of committing the offence. If the principal before the had previously formed the design, and the alleged acces. fact need not be sary encouraged him to carry it out by stating falsehoods, originator.

or otherwise, he is guilty as accessary before the fact.' $ 234. The quantity of aid rendered is of no consequence. A

counterfeiting raid, for instance, may have a hundred Quantity of aid im- persons concerned as accessaries, some contributing very material.

little aid. All, however, are technically guilty. What distinguishes the act of the accessary from that of the principal is that the accessary, while concerned in facilitating the execution of the guilty purpose, takes no part in this execution, leaving it to the principal." $ 235. There is no particular period of time to which accessary

ship is limited. It may take place when the guilty act is Conditions of time

concocted, when it is prepared, or when it is executed, imma

provided that in the latter case there is not actual pres

ence. And it may be coupled with accessaryship after the fact.7 § 236. A question of considerable interest has arisen as to the

extent to which the principal's personal relations are to Grade of guilt not be imputed to the accessary. A public officer, for instance, necessarily committing a specific act, is liable to a severer punishment the same.

than would be a private citizen. Is a private citizen, who is an accessary to an officer in such an offence, chargeable with the same grade of guilt? Or is an accessary to a trustee, who is guilty of embezzlement, to be charged with the same grade of guilt as would the trustee ? On this question we have the following possible theories :8

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1 Infra, & 236. See, to same effect, 3 Keithler v. State, 10 Sm. & M. 192, R. v. Smith, 2 Cox C. C. 233, 1848; 1848. See R. v. Tuckwell, C. & M. Steph. Dig. C. L. art. 250 (5th ed.), 215, 1841. citing R. v. Gaylor, D. & B. 288, 1855; . See supra, % 217. R. v. Taylor, L. R. 2 C. C. 147, 1875. 5 See supra, & 206.

? Infra, & 546. Hagan v. State, 10 6 See Watson v. State, 9 Tex. App. Ohio St. 459, 1860. That there may 237, 1880. be accessaries after the fact to man- ? R. v. Blackson, 8 C. & P. 43, slaughter, see R. v. Greenacre, 8 C. & 1837. P. 35, 1837; R. v. Richards, 13 Cox Berner, % 111. C. C. 611, 1878.


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