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Accessary after the fact is one

who subsequently assists or comforts

the felon.

By the English common law, however, a person, according to the text-books, who, when knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon,' whether he be a principal or an accessary before the fact, is an accessary after the fact, involved in the same penalty as the principal.2 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,3 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; Roscoe's Cr. Ev. 184; see R. v. Lee, 6 C. & P. 536, 1854.

A man who employs another person to harbor the principal may be convicted as an accessary after the fact, although he himself did no act to relieve or assist the principal. R. v. Jarvis, 2 Moo. & R. 40, 1841. So it appears to be settled that whoever rescues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessary. Hawk. P. C. b. 2, c. 29, s. 27. See Roscoe's Cr. Ev. 184; and see generally as to how far "concealing" constitutes accessaryship after the fact, White v. People, 81 Ill. 333, 1876.

2 Wren v. Com., 26 Gratt. 952, 1875; Taylor v. Com., 11 Bush, 154, 1876; Loyd v. State, 42 Ga. 221, 1871; Harrol v. State, 39 Miss. 702,

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7 1 Hale, 621; Hawk. b. 2, c. 29, s. 26; Archbold, by Jervis, 9.

See infra, 8 1672, 1677, as to prison breach.

9 Hale, 619; Wren v. Com., ut supra; Taylor v. Com., 11 Bush, 154, 1876. See R. v. Brannon, London Law Times, Feb. 28, 1880, p. 319.

10 1 Hale, 620. See R. v. Chapple, 9 C. & P. 355, 1840. 11 1 Hale, 620.

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 another.

1. The felony must have been committed.8 2. The defendant must know that the felon is guilty, and this, therefore, is always averred in the indictment.

Knowledge of principal's guilt essential.

And though

it has been intimated that constructive notice of the felony will, in

1 1 Hale, 332.

2 Ibid.

33 Inst. 139; 1 Hale, 620. But inducing a witness to testify falsely will constitute one an accessary after the fact. Blakely v. State, 24 Tex. App. 616, 1888.

91

Hale, 622; Com. Dig. Justices, T. 2. See R. v. Butterfield, 1 Cox C. C. 93, 1845; R. v. Greenacre, 8 C. & P. 35, 1837; Wren v. State, 26 Gratt. 952, 1876. That such knowledge is to be inferred from facts, see White v. People, 81 Ill. 333, 1875; Tully v.

4 Moore, 8. See Wren v. Com., 25 Com., 13 Bush, 142, 1877. Gratt. 789, 1875.

* 1 Hale, 371, 618; State v. Hann, 40 N. J. L. 228, 1878; State v. Giles, 52 Ind. 356, 1875; State v. Fries, 53 Ind. 489, 1876; White v. People, 81 Ill. 833, 1876.

6 Reynolds v. People, 83 Ill. 479, 1877; Welch v. State, 3 Tex. App. 413, 1879.

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10 Hawk. b. 2, c. 29, s. 33.

It is sometimes said that the inception of the offence of accessaries after the fact must be subsequent to that of the principal offence. This, however, is not necessarily the case. A receiver, for instance, may make his arrangements to receive the goods obtained by a projected larceny. If he does not act in concert with the principal offender-in other words, if the principal does not know that he is thus acting-he is an accessary after the fact. But it is otherwise if his reception is in consequence of a previous engagement. If he should say, "Go ahead; I will stand by you, and

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.2

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.5

Wife is not so liable.

Conviction of princi

pal primâ

dence of

his guilt.

6

§ 244. At common law, as we have seen, the conviction of the principal is a necessary prerequisite to the conviction of the accessary. Where the principal and accessary are facie evi- joined in an indictment, and tried separately, the record of the principal's conviction is irrebuttable proof of such 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. If the conviction of the principal be reversed, this brings with it the reversal of the judgment against the accessary."

take care of the things after you get them," he is accessary before the fact, or instigator, and hence, by recent legislation, principal. He encourages the thief, and becomes therefore a party to theft."

1 Dyer, 355; Staunf. 41 b.

21 Hale, 323, 622; R. v. Burridge, 3 P. Wms. 475; Tully v. Com., 13 Bush, 142, 1877.

R. v. Chapple, 9 C. & P. 355, 1840; Loyd v. State, 42 Ga. 221, 1871.

* 1 Hale, 621; Hawk. b. 2. c. 29, s. 34; 4 Bla. Com. 39; Com. Dig. Jus. T. 2.

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§ 245. An accessary after the fact cannot be convicted. on an indictment charging him as principal.1

The question of jurisdiction is hereafter considered.2

Indictment must be specific.

V. LIABILITY OF PRINCIPAL FOR CRIMINAL ACT OF AGENT.

The cases under this head may be classed as follows:

Command

for agent's

act.

(a) Where the Agent acts directly under the Principal's 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.3 In misdemeanors ing principal liable the act may be charged to have been done by the principal 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." 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."

(b) Where the Agent is acting at the Time in the Line of the Principal'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

1

Supra, 238; R. v. Fallon, 9 Cox C. C. 242, 1862; R. v. Soares, R. & R. 25, 1802; State v. Wyckoff, 2 Vroom, 65, 1866; Reynolds v. People, 83 Ill. 479, 1877; Wade v. State, 71 Ind. 535, 1880; State v. Dewer, 65 N. C. 572, 1871; Anderson v. State, 63 Ibid. 675, 1880; Hughes v. State, 12 Ala. 458, 1847; Josephine v. State, 39 Miss. 613, 1866; People v. Campbell, 40 Cal. 129, 1871. Under statutes, see supra, 238.

Infra, ¿¿ 287, 288.

'See Felton v. U. S., 96 U. S. 699, 1877; Lathrop v. State, 51 Ind. 192; infra, 1503; supra, ?? 205 et seq.

U. S. v. Morrow, 4 Wash. C. C. 733, 1829; Com. v. Stevens, 10 Mass.

181, 1845; Seaman v. Com., 1 Weekly Notes, 14, and note appended thereto; Sloan v. State, 8 Ind. 312, 1856. For master's liability for servant's negligent act, see supra, ? 135; infra, ?? 341, 1422, 1503.

5 Supra, 207, 223; infra, & 341; R. v. Michael, 2 M. C. C. 120; 9 C. & P. 356, 1840; R. v. Spiller, 5 C. & P. 333, 1832. If a man does, by an innocent agent, a felony, the employer and not the agent is accountable criminally." R. v. Bleasdale, 2 C. & K. 765, 1848.

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And so where

agent acts

business.

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 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.3 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

1 R. v. Dixon, 3 M. & S. 11, 1814; Roberts v. Preston, 9 C. B. (N. S.) 208, 1860; State v. Wentworth, 65 Me. 234, 1875; Com. v. Nichols, 10 Metc. 259, 1845; Anderson v. State, 22 Ohio St. 305, 1871; Mollihan v. State, 30 Ind. 266, 1869; infra, 1503.

clerk without the owner's consent. Noecker v. People, 91 Ill. 494, 1879; People v. Roby, (Mich.) 17 Rep. 626, 1884. In People v. Utter, 44 Barb. 170, 1864, the court, on the other hand, held that a master was not responsible for a sale of liquor on Sun

2 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 Anderson v. State, 22 Ohio St. 305, 1870.

1829.

R. v. Gutch, Moody & M. 433,

5 Supra, 135.

3 R. v. Almon, 5 Burr. 2686, 1770; R. v. Dodd, 2 Sessions Cases, 33; R. v. Gutch, Moody & M. 433, 1829; U. S. v. Nunnemacher, 7 Biss. 111, 1875; Com. v. Park, 1 Gray, 553, 1854; Com. v. Nichols, 10 Metc. 259, 1845; Com. 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. Gillespie, 7 S. & R. 469, 1821; State v. Mathis, 1 Hill, (S. C.) 37, 1833; Britain v. State, 3 Humph. 203, 1842; Com. v. Major, 6 Dana, 293, 1838; Hipes v. State, 73 Ind. 39, 1880; 1 Ben. & H. Lead. Cas. 241; infra, 341, 1422, 1467, 1503. This rule holds even as to the sale of liquor on Sunday by a McGrath, 73 Mo. 181, 1879; State v.

v. Halberstadt, Gilp. 262; Com. v.
Nichols, 10 Metc. 259, 1846; Barnes
v. State, 19 Conn. 398, 1848; State v.
Privett, 4 Jones, 100, 1856; State v.
Dawson, 2 Bay, 360, 1796; Hipp v.
State, 5 Blackf. 149, 1841; O'Leary v.
State, 44 Ind. 91, 1876; Anderson v.
State, 39 Ind. 553, 1871; State v.

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