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after the fact is one

the felon.

By the English common law, however, a person, according to the

text-books, who, when knowing a felony to have been Accessary

committed by another, receives, relieves, comforts, or who subse- assists the felon,' whether he be a principal or an accesquently assists or

sary before the fact, is an accessary after the fact, comforts

involved in the same penalty as the principal. When

we examine the cases given, however, we find that the assistance to a felon, which constitutes this form of accessaryship, is such assistance as to some extent shelters the principal from prosecution, as, for instance, where the alleged accessary concealed the principal in his house, or shut the door against his pursuers, until he should have an opportunity of escaping,* or took money from him to allow him to escape," or supplied him with money, a horse, or other necessaries, in order to enable him to escape, or where the principal was in prison, and the accessary, before conviction, bribed the jailor to let him escape, or supplied him with materials for the same purpose, or in any way aided in compassing his escape. Merely suffering the principal to escape, however, it is held, will not impute the guilt of accessaryship to the party so doing. And it is conceded that if a person supply a felon in prison with victuals or other necessaries, for his sustenance ;10 or succor and sustain him if he be bailed out of prison;" or profession


11 Hale, 618; 4 Bl. Com. 37; Ros- 1866; People v. Gassaway, 28 Cal. coe's Cr. Ev. 184; see R. v. Lee, 6 C. 404, 1862; 2 Hawk. c. 29, s. 1; P. & P. 536, 1854.

Wms. 475. A man who employs another per- 8 Dalt, 530, 531. Infra, & 652, and son to harbor the principal may be cases there cited. convicted as an accessary after the 4 1 Hale, 619. fact, although he himself did no act to 5 9 H, 4, 1. relieve or assist the principal. R. v. 6 Hall's Sum. 218; 2 Hawk. c. 29, s. Jarvis, 2 Moo. & R. 40, 1841. So it 26. See Com. v. Filburn, 119 Mass. appears to be settled that whoever 297, 1876. rescues a felon imprisoned for the 1 Hale, 621; Hawk. b. 2, c. 29, s. felony, or voluntarily suffers him to 26; Archbold, by Jervis, 9. escape, is guilty as accessary. Hawk. 8 See infra, 28 1672, 1677, as to P. C. b. 2, c. 29, s. 27. See Roscoe's prison breach. Cr. Ev. 184; and see generally as to 9 Hale, 619; Wren v. Com., ut supra; how far "concealing" constitutes ac- Taylor v. Com., 11 Bush, 154, 1876. cessaryship after the fact, White v. See R. v. Brannon, London Law People, 81 Ill. 333, 1876.

Times, Feb. 28, 1880, p.

319. 2 Wren v. Com., 26 Gratt. 952, 10 1 Hale, 620. See R. v. Chapple, 1875; Taylor v. Com., 11 Bush, 154, 9 C. & P. 355, 1840. 1876; Loyd v. State, 42 Ga. 221, 11 1 Hale, 620. 1871; Harrol v. State, 39 Miss. 702,

ally attend a felon sick or wounded, although he know him to be a felon;' or speak or write in order to obtain a felon's pardon or deliverance, or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly ;or even if he himself agree, for money, not to give evidence against the felon ;+ or know of the felony and do not disclose it ; these acts will not be sufficient to make the party an accessary after the fact. There must be some independent criminality to make them an offence. Statutes, also, now exist, making accessaryship after the fact substantively indictable. Even interference with public justice by promoting the escape of a criminal is now tried as an independent offence."

§ 242. Three things are laid down in the books as necessary to constitute a man accessary after the fact to the felony of


edge of 1. The felony must have been committed. 8


guilt 2. The defendant must know that the felon is guilty,' and this, therefore, is always averred in the indictment. And though it has been intimated that constructive notice of the felony will, in


616, 1888.

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11 Hale, 332.

9 1 Hale, 622; Com. Dig. Justices, Ibid.

T. 2. See R. v. Butterfield, 1 Cox C. 3 3 Inst. 139 ; 1 Hale, 620. But in- C. 93, 1845; R. v. Greenacre, 8 C. & ducing a witness to testify falsely will P. 35, 1837 ; Wren v. State, 26 Gratt. constitute one an accessary after the 952, 1876. That such knowledge is to fact. Blakely v. State, 24 Tex. App. be inferred from facts, see White v.

People, 81 Ill. 333, 1875; Tully v. Moore, 8. See Wren v. Com., 25 Com., 13 Bush, 142, 1877. Gratt. 789, 1875.

10 Hawk. b. 2, c. 29, s. 33. • 1 Hale, 371, 618; State v. Hann, It is sometimes said that the incep40 N.J. L. 228, 1878; State v. Giles, tion of the offence of accessaries after 52 Ind. 356, 1875; State v. Fries, 53 the fact must be subsequent to that of Ind. 489, 1876; White v. People, 81 the principal offence. This, however, III. 833, 1876,

is not necessarily the case.

A re• Reynolds v. People, 83 III. 479, ceiver, for instance, may make his 1877; Welch v.

State, 3 Tex. App. arrangements to receive the goods ob413, 1879.

tained by a projected larceny. If he . Infra, && 632, 1672, 1677; Com. v. does not act in concert with the prinMiller, 2 Ashm. 61, 1835. That pres- cipal offender-in other words, if the ence at the crime is not necessary, see principal does not know that he is

thus acting-he is an accessary after Ankard u. State, 30 Ga. 757, 1860.

C. L. 264; 1 Hale, 622; 2 the fact. But it is otherwise if his

29, s. 35; Harrol v. State, reception is in consequence of a preps. 702, 1866; Poston v. State, vious engagement. If he should say, App. 408, 1881.

“Go ahead; I will stand by you, and


1 Ch. Hawk.


Wife is not so liable.

some cases, suffice : as where a man receives a felon in the same county in which he has been attainted, which is supposed to have been a matter of notoriety; yet the better opinion is that there should be laid such a basis of inculpatory facts as properly to raise the presumption of knowledge.?

3. The felon must be to some extent sheltered from pursuit by the defendant.3

§ 243. The only relation, so it is said, which excuses the harboring a felon is that of a wife to her husband, because she is considered as subject to his control, as well as bound to him by affection."

But by the English common law no other ties, however near, will excuse; for if the husband protect his wife, a

father his son, or a brother his brother, they contract the guilt, and are liable to the punishment, of accessaries to the original felony § 244. At common law, as we have seen, the conviction of the

principal is a necessary prerequisite to the conviction of Conviction of princi- the accessary. Where the principal and accessary are facie evic joined in an indictment, and tried separately, the record

of the principal's conviction is irrebuttable proof of such his guilt.

conviction, and is primâ facie evidence of his guilt, upon the trial of the accessary; and as the burden of proof is on the accessary, he must then show that the principal ought not to have been convicted.? But the accessary, in such case, is not restricted to proof of facts that were shown on the former trial, but may prove others which are incompatible with the guilt of the principal.S If the conviction of the principal be reversed, this brings with it the reversal of the judgment against the accessary.'

dence of


take care of the things after you get

5 Ibid. As to N. Y. statute, see them,” he is accessary before the fact, supra, % 205. or instigator, and hence, by recent 6 Supra, 237; Edwards v. State, 80 legislation, principal. He encourages Ga. 127, 1887. the thief, and becomes therefore a ? Com. v. 'Knapp, 10 Pick. 184, party to theft."

1830; State v. Chittem, 2 Dev. 19, | Dyer, 355 ; Staunf. 41 b.

1830; State v. Duncan, 6 Ired. 236, 1 Hale, 323, 622; R. v. Burridge, 1846. See supra, 2 237. 3 P. Wms. 475; Tully v. Com., 13 * Com. v. Knapp, 10 Pick. 484, 1830. Bush, 142, 1877.

See State v. Sims, 2 Bail. (S. C.) 29, 8 R. v. Chapple, 9 C. & P. 355, 1840; 1830; State v. Crank, Ibid. 66, 1831. Loyd v. State, 42 Ga. 221, 1871.

Ray v. State, 13 Nebr. 55, 1882. * 1 Hale, 621; Hawk. b. 2. c. 29, s. 34; 4 Bla. Com. 39; Com. Dig. Jus. T. 2.


$ 245. An accessary after the fact cannot be convicted on an indictment charging him as principal."

The question of jurisdiction is hereafter considered.?

Indictment must be specific.




The cases under this head may be classed as follows : (a) Where the Agent acts directly under the Principals Commands.

$ 246. When the agent performs the illegal act under an absent principal's direction, either express or implied, this imposes responsibility on the principal. In misdemeanors ing princithe act may be charged to bave been done by the princi- for agent's pal himself, without reference to an agent. Such, also, is the case in felonies, where the agent is innocent, insane, or a slave, in which case the party commanding the felony to be done, though absent at the time of its commission, is principal in the first degree.5 In felonies, where the agent is responsible, the absent principal is at common law accessary before the fact. As we have seen, an agent, when physically free, is not relieved from responsibility by the fact that he is acting under his principal's directions.

(6) Where the Agent is acting at the Time in the Line of the Princi

pal's Business, but without Specific Instructions. $ 247. A principal is primâ facie liable for the illegal acts of an agent done in a general course of illegal business authorized by


1880; State v.

1880; Hughes

Supra, & 238; R. v. Fallon, 9 Cox 181, 1845; Seaman v. Com., 1 Weekly C. C. 242, 1862; R. v. Soares, R. & R. Notes, 14, and note appended thereto; 25, 1802 ; State v. Wyckoff, 2 Vroom, Sloan v. State, 8 Ind. 312, 1856. For 65, 1866; Reynolds v. People, 83 111. master's liability for servant's negli479, 1877; Wade v. State, 71 Ind. 535, gent act, see supra, & 135; infra, 28 341,

Dewer, 65 N. C. 572, 1422, 1503. 1871; Anderson v. State, 63 Ibid. 675, 5 Supra, 22 207, 223; infra, & 341 ;

v. State, 12 Ala. 458, R. v. Michael, 2 M. C. C. 120 ; 9 C. & 1847; Josephine v. State, 39 Miss. P. 356, 1840; R. v. Spiller, 5 C. & P. 613, 1866; People v. Campbell, 40 Cal. 333, 1832. “If a man does, by an

Under statutes, see supra, innocent agent, a felony, the employer $ 238.

and not the agent is accountable crimi

nally.” R. v. B!easdale, 2 C. & K. See Felton v. U. S., 96 U. S. 699, 765, 1848.

v. State, 51 Ind. 192; Infra, & 247. infra, & 1503; supra, 33 205 et seq. ? Supra, 8% 94 et seq.; Play v. People,

Morrow, 4 Wash. C. C. 86 III, 147, 1877.
Com. v. Stevens, 10 Mass.

129, 1871.

* Infra, a 2 287, 288.

1877; Lathrop


* U. $. 733, 1829


And so


the principal,' and this is eminently the case in indictments for

nuisances, which could not be abated if the master was

not liable for the servant's acts, if in general furtherance acts in line of of the master's plan.' And the rule applies to all cases principal's where a master inflicts indictable injury through a servant.

Thus, where a barkeeper in a hotel sells liquor, or a salesman in a bookstore in the usual course of business sells a libellous book, or where a clerk publishes a libel in a newspaper, the principal is responsible, and, if there be no other evidence, may be convicted. Even the fact that the principal, who was the publisher of a newspaper, was living at the time one hundred miles distant from the place of publication, was sick and entirely ignorant of the libel being published, is at common law no defence. A master, also, may be liable for the negligence of a servant whom he negligently appoints or negligently controls. But it is otherwise if the agent be without authority, express or implied, and the act be out of the range of the agent's business, and against the principal's express and bonâ fide commands. It should also be remembered that as it


R. v. Dixon, 3 M. & S. 11, 1814; clerk without the owner's consent. Roberts v. Preston, 9 C. B. (N. S.) Noecker v. People, 91 Ill. 494, 1879; 208, 1860; State v. Wentworth, 65 Me. People v. Roby, (Mich.) 17 Rep. 626, 234, 1875; Com. v. Nichols, 10 Metc. 1884. In People v. Utter, 44 Barb. 259, 1845; Anderson v. State, 22 Ohio 170, 1864, the court, on the other St. 305, 1871; Mollihan v. State, 30 hand, held that a master was not reInd. 266, 1869; infra, & 1503. sponsible for a sale of liquor on Sun

? R. v. Stephens, L. R. 1 Q. B. 702- day unless it was shown to have been 10, 1866.

with his direction or assent. See 3 R. v. Almon, 5 Burr. 2686, 1770; Anderson v. State, 22 Ohio St. 305, R. v. Dodd, 2 Sessions Cases, 33; R. 1870. v. Gutch, Moody & M. 433, 1829; U. * R. v. Gutch, Moody & M. 133, S. v. Nunnemacher, 7 Biss. 111, 1875; 1829. Com. v. Park, 1 Gray, 553, 1854; Com. Supra, & 135. v. Nichols, 10 Metc. 259, 1845; Com. 6 See supra, % 135; infra, % 1503; R. v. Morgan, 107 Mass. 199, 1871; Com. v. Bennett, Bell C. C. 1, 1858; 8 Cox v. Boston R. R., 126 Mass. 61, 1879; C. C. 74, cited supra, & 154; U. S. State v. Smith, 10 R. I. 258, 1872; Com. v. Halberstadt, Gilp. 262; Com. v. v. Gillespie, 7 S. & R. 469, 1821; State Nichols, 10 Metc. 259, 1846; Barnes

Mathis, 1 Hill, (S. C.) 37, 1833; Brit- v. State, 19 Conn. 398, 1848 ; State v. ain v. State, 3 Humph. 203, 1842 ; Com. Privett, 4 Jones, 100, 1856; State e. v. Major, 6 Dana, 293, 1838; Hipes v. Dawson, 2 Bay, 360, 1796; Hipp v. State, 73 Ind. 39, 1880; 1 Ben. & H. State, 5 Blackf. 149, 1841 ; O'Leary v. Lead. Cas. 241 ; infra, % 341, 1422, State, 44 Ind. 91, 1876; Anderson v. 1467, 1503. This rule holds even as State, 39 Ind. 553, 1871; State v. to the sale of liquor on Sunday by a McGrath, 73 Mo. 181, 1879; State v.


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