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(1) The accessary is absorbed in the principal, so that the principal's personal relations, in respect to the crime, are im putable to the accessary.

(2) Each offender is chargeable only for what he really is. Thus, the non-public officer cannot be punished as a public officer, and the non-trustee cannot be punished as a trustee. Hence, according to this view, where a principal in a homicide, from the fact of his bearing a particular relation to the deceased, would be guilty of murder in the first degree, an accessary not bearing this relation would be guilty only of murder in the second degree.

(3) We may distinguish, as do several codes, between those qualities, which establish or cancel, and those which increase or diminish, punishability. As to the first, the personal relations of the principal are the standard. As to the second, each offender is to be judged according to his own peculiar relations. Hence, to take up the last case, an accessary to a murder, whose grade is determined by the personal qualities of the perpetrator, is to be judged from his own and not his principal's relations. A non-officer, also, who aids an officer in an offence, whose grade is increased by the official relation, is liable only for the lower grade of the offence. On the other hand, a non-officer who aids in a purely official crime (e. g., acceptance of a bribe by a judge) is, by the force of the distinction before us, liable as accessary to the crime.

Another question arises in homicide when the accessary and the principal are acting under different degrees of passion. Under the old law, the defendant was first convicted, and then the accessary was charged with being accessary to the offence which the conviction covered. But now that instigation is a substantive offence, it must be remembered that the offence of the instigator is not necessarily of the same grade as that of the perpetrator. The instigator may act in hot blood, in which case he will be only guilty of manslaughter, while the perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool some one whom that enemy has aggrieved and who is infuriated by his grievance. Hence an accessary before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter ; or the accessary before the fact (instigator)

, acting in hot

site.

blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder.' § 237. At common law, the conviction of some one who has com

mitted the crime must precede or accompany that of one Conviction of princi

charged as accessary.? A prisoner does not waive his right pal no

to call for the record of such conviction, by pleading. Conlonger a prerequi- viction of the principal is not admissible evidence until

judgment has been rendered on the verdict ;* and, when the trials are concurrent, there can be no judgment against the accessary until there is a sentence of the principal. The record must be proved in the usual mode. But even at common law, where there are two principals, and only one convicted, the other being dead, the accessary must answer notwithstanding the non-conviction of the deceased.? By statutes, however, now almost universally adopted, the offence of an accessary is made substantive and inde. pendent, and consequently the accessary may be tried independently of the principal, though in such case the guilt of the principal must be alleged and proved. And the principal may be averred to be unknown.

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1 That joint participants may be not liable to be tried while the princiguilty of different degrees, see Fost. pal is amenable to the laws of the 106, 129; Whart. Cr. Pl. & Pr. 8% 307, State and is still unconvicted. State 753; Klein v. People, 31 N. Y. 229, v. Groff, 1 Murphy's R. 270, 1809. See 1865; Mask v. People, 32 Miss. 405, State v. Goode, 1 Hawks, 463, 1822; 1861.

Harty v. State, 3 Blackf. 386, 1837. ? See U. S. v. Crane, 4 McLean, 317, 4 State v. Duncan, 6 Iredell, 236, 1850; Com. v. Andrews, 3 Mass. 126, 1846. 1808; Com. v. Briggs, 5 Pick. 429, 5 2 Curw. Hawk. & 41. 1827; Com. v. Phillips, 16 Mass. 423, People v. Gray, 25 Wend. 465, 1820 ; Baron v. People, 1 Parker C. R. 1841. 246, 1854; Brown v. State, 18 Ohio St. 7 Com. v. Knapp, 10 Pick. 477, 1830. 496, 1868; Com. v. Williamson, 2 Va. 8 See State v. Ricker, 29 Me. 84, Cas. 211, 1817; Smith v. State, 46 Ga. 1848; Pettes v. Com., 126 Mass. 242, 298, 1872; State v. Pybass, 4 Humph. 1879; People v. Gray, 25 Wend. 465, 442, 1843. As to N. Y. statutes, see 1841; Holmes v. Com., 25 Pa. 221, supra, 205. Bowen d. State, 25 Fla. 1855 ; Com. 2. Hughes, 11 Phila. 430, 645, 1889.

1876 ; Brown v. State, 18 Ohio St. 496, 3 Fost. 360; 1 Hale, 623; U. S. v. 1868; Noland v. State, 19 Ohio, 131, Burr, 4 Cranch, 502, 1808.

1850; Hatchett v. Com., 75 Va. 925, In North Carolina, the principle has 1880; Ulmer v. State, 14 Ind. 52, 1860; been somewhat expanded, it having Yoe v. People, 49 111. 410, 1869; State been there held that the accessary is v. Comstock, 46 Iowa, 265, 1877;

• Com. v. Adams, 127 Mass, 15, 1879.

When principal and accessary are tried separately, conviction of the principal is primâ facie evidence of his guilt, on the trial of the accessary, but may be collaterally disputed when the issue is the guilt of the accessary."

Ogden v. State, 12 Wis. 532, 1861; several American statutes copy, only Jordan v. State, 56 Ga. 92, 1876; applies where the accessary might at Loughridge v. State, 6 Mo. 594, 1841 ; common law have been indicted with People v. Campbell, 40 Cal. 129, 1876; or without the conviction of the prinPeopler. Outeveras, 48 Cal. 19, 1874; cipal; and, therefore, where a defendState v. Cassidy, 12 Kans. 550, 1873. ant was indicted as accessary before As to English statute, see R. v. Hughes, the fact to the murder of S. N., she Bell C. C. 242, 1858; R. v. Gregory, having, by his procurement, killed L. R. 1 C. C. 77; 10 Cox C. C. 459, herself, it was ruled that the statute 1867. As to New York statute see did not apply. R. v. Russell, 1 Mood. supra, X205.

C. C. 356, 1832; R. v. Gaylor, 7 Cox At common law an accessary is dis- & 244. charged by the acquittal of his prin- At common law where the principal cipal on those charges whereon the and accessary are tried together, if the indictment against himself is founded. principal plead otherwise than the U. S. v. Crane, 4 McLean, 317, 1850. general issue, the accessary is not

Even in a case where the principal bound to answer until the principal's was indicted for burglary and larceny plea be first determined. 9 H. 7, 19; in a dwelling-house, and the accessary i Hale, 624; 2 Inst. 184. Where the charged in the same indictment as general issue is pleaded, however, the accessary before the fact to the said jury must be charged to inquire first felony and burglary," and the jury ac- of the principal, and if they find him quitted the principal of the burglary, not guilty, then to acquit the accesbut found him guilty of the larceny, sary; but if they find the principal the judges, it is said, were of opinion guilty, they are then to inquire of the that the accessary should have been accessary, 1 Hale, 624; 2 Inst. 184, acquitted; for the indictment charged See Holmes v. Com., 25 Pa. 221, 1855. him as accessary to the burglary only,

In Massachusetts an accessary beand the principal being acquitted of fore the fact may be tried in the that , the accessary should be acquitted county of the consummated act, though Dannelly, R. & R. 310, the act of accessaryship was committed

elsewhere. Com, v. Pettes, 114 Mass. R. v. Turner, 1 Mood. 347, 1833; 307, 1873. See infra, ?? 279, 287. State v. Ricker, 29 Me. 84, 1848 ;

State In Virginia an accessary cannot be v. Rand, 33 N. H. 216, 1856 ; Com. v. prosecuted for a substantive offence, Knapp, 10 Pick. 477, 1829; Com. v. but only as accessary to the principal Stow, 1 Mass. 54, 1806; People v. Buck- felon. The guilt of the principal felon land, 13 Wend. 592, 1835; State v. must be proved, but not his convicDuncan

, 6 Ired. 236, 1846 ; Keithler v. tion. Hatchett v. Com., 75 Va. 925,
Sm. & M. 192, 1848. Infra, 1880.

In Tennessee, where a principal to
C. C. 253; Dears. & B. C. C. 288, 1855.
It should be observed that the stat- a murder was sentenced to imprison-
of 7 Geo. IV. c. 64, s. 9, which ment for life, in accordance with the

also. R. v.
1818; 2 Marsh. 571.

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tate,

ate

Under the recent statutes, which treat principals and accessaries before the fact as confederates, the declarations and acts of the one, in furtherance of the common plan, are admissible against the other.' It is otherwise when the conspiracy is terminated," the accessary being tried for a substantive offence, and the principal's confessions, after the joint action is closed, not being receivable against him."

§ 238. At common law it is not necessary, in an indictment against an accessary before the fact in a felony, to set out the conviction or execution of the principal. It is enough to aver the latter's guilt. The indictment must show the commission of the offence as par

ticularly as is necessary in an indictment against the prinment must cipal. In States where it is provided by statute that an particular

accessary before the fact shall be deemed and considered

as principal and punished accordingly, an accessary may be indicted and convicted as a principal. It is otherwise at common law, and in States where this law prevails, an accessary before

Indict

ize offence.

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statute of 1838, c. 29, an accessary be- 5 Com. v. Dudley, 6 Leigh, 614, fore the fact, subsequently tried and 1834; Jordan v. State, 56 Ga. 92, 1876. convicted (the jury bringing in a gen- See People v. Schwartz, 32 Cal. 160, eral verdict of guilty, without finding 1867; People v. Crenshaw, 46 Cal. 65, mitigating circumstances), was held to 1873; People v. Thrall, 50 Cal. 415, be properly sentenced to imprisonment 1875. See State v. Mosley, 31 Kans. for life. Nuthill v. State, 11 Humph. 355, 1883. 247, 1850.

Campbell v. Com., 84 Pa. 187, As to Louisiana, see State v. Wash- 1877; Com. v. Hughes, 11 Phila. 430, ington, 33 La. An. 1473, 1881. 1876 ; Raiford v. State, 59 Mich. 106,

An accessary cannot take advantage 1883; Jordan v. State, 56 Ga. 92, 1876; of an error in the record against the State v. Zeibart, 40 Iowa, 169, 1875; principal. State v. Duncan, 6 Ired. Dempsey v. People, 47 Ill. 323, 1868; 236, 1846; Com. v. Knapp, 10 Pick. Yoe v. People, 49 Ill. 410, 1869; State 477, 1829.

v. Cassidy, 12 Kans. 550, 1873. See See infra, & 1405.

infra, 8 245; and see Whart. Pl. & Pr. ? R. v. Turner, 1 Mood. C. C. 347, § 458; Ward v. Com., 14 Bush, 232, 1833; State v. Newport, 4 Harring. 1877. 1847.

* R. v. Fallon, 9 Cox C. C. 242, 3 Ibid. ; Ogden v. State, 12 Wis. 1869; R. v. Plant, 7 C. & P. 575, 532, 1860. See, as taking a less re- 1836; State v. Larkin, 49 N. H. 39, stricted view of admissibility, U. S. v. 1869; State v. Wyckoff, 2 Vroom, 65, Hartwell, supra; R. v. Blick, 4 C. & P. 1868; Hughes v. State, 12 Ala. 458, 377, 1830.

1847; Josephine v. State, 39 Miss. 613, * State v. Sims, 2 Bail. (S. C.) 29, 1866; Walrath v. State, 8 Nebr. 80, 1830 ; State v. Crank, Ibid. 66, 1831; 1889. For other cases see infra, & 245. Holmes v. Com., 25 Pa. 221, 1855.

567,

Verdict

the fact, though by statute punishable as principal, must nevertheless be indicted, not as principal, but as accessary before the fact."

$ 239. At common law, the verdict must specify the grade, and under a verdict of "guilty as accessary,” the defendant cannot be sentenced as accessary before the fact.? must speAs has just been seen, accessary and principal (or insti- cify grade. gator and perpetrator) may, under recent codes, be convicted of different grades.

§ 240. If the felony is not committed, he who counsels or commands its commission is not liable as accessary before the

Attempt. fact but he may be convicted for the attempt as a substantive misdemeanor, if steps were taken to consummate the offence.

VI. ACCESSARIES AFTER THE FACT,

§ 241. Although in other jurisprudences he who directs or counsels a specific offence is involved in the same penalty as the actual perpetrator, the English common law stands alone in assigning the same grade of guilt to those who conceal or protect the perpetrator after the commission of the offence. That such persons should be punished is eminently just; but it is eminently unjust that they should be punished in the same way as the criminal whom they shelter.

1 Pettes v.

Com., 126 Mass. 242, Breach. See Berner, Lehrbuch, 1877, 1879; People v. Campbell, 40 Cal. pp. 196, 197. 129, 1871. See People v. Shepardson, In England, the old common law 48 Cal. 189, 1874. Infra, & 245; Wil- has been modified by stat. 24 & 25 liams v. State, 41 Ark. 173, 1882. Vict., which limits the punishment to "Incite

, move and procure, aid, coun- imprisonment for four years. See R. sel, hire, and command the said per- v. Fallon, L. & C. 217, 1869; 9 Cox, son as aforesaid unknown, the said 242. felony and abortion in manner and Receiving stolen goods does not, at form aforesaid to do and commit,” has common law, constitute accessaryship been sustained in Massachusetts as after the fact to the larceny. It was sufficiently describing the offence of otherwise by the statute 3 Will. & an accessary before the fact. Com. v. Mary. In most jurisdictions, howAdams, 127 Mass. 15, 1880.

ever, the reception of stolen goods State v. Rose, 20 La. An. 143, is now an independent crime. See 1868.

infra, 8% 982 et seq. 2. Fait. R. 5, 1802 ; Ch. C. L. 264. Receiving money, knowing that it

was obtained by robbery, does not we call accessaryship after constitute accessaryship after the fact is punished in Germany

and at common law. Williams v. State, un gence as an independent offence, in 55 Ga. 391, 1874.

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