evil practice of the prisoner himself. It is not necessary to the validity of these pleas, in any criminal case, that a judgment should have been entered upon the verdict; 2 but if the judgment have been arrested, the plea cannot be supported.3 § 39. In trials for felony, admissions of fact, which the government is bound to prove, are not permitted, unless when made at the trial, in open Court, by the prisoner or his counsel. Thus, where, before the trial, which was for perjury, it had been agreed by the attorneys on both sides, that the formal proofs on the part of the prosecution should be dispensed with, and that this part of the case for the prosecution should be admitted, Ld. Abinger, C. B., refused to allow the admission, unless it were repeated in Court; and this being declined, the prisoner was acquitted. But where, in a previous case, upon a trial for counterfeiting, it was proposed, by the counsel for the prosecution, that the testimony just before given on the trial of the same prisoner, on another indictment for the same offence, should be admitted, without calling the witnesses again; and this was consented to by the prisoner's counsel, Patteson, J., doubted whether it could be done in cases of felony, though in cases of misdemeanor it might; and therefore he directed the witnesses to be called and resworn, and then read over his own notes of their testimony, to which they assented.5 We now proceed to consider the evidence appropriate to distinct offences. 1 1 Chitty, Crim. Law, 657; Rex v. Bear, 1 Salk. 646; Rex v. Furser, Sayer, 90; Rex v. Davis, 1 Show. 336; Regina v. Coke, 12 Mod. 9; Anon. 1 Lev. 9; Rex v. Mawbey, 6 T. R. 619; The State v. Brown, 12 Conn. 54; The State v. Little, 1 N. Hamp. 257; Commonwealth v. Kinney, 2 Virg. Cas. 139. 2 The State v. Norvell, 2 Yerg. 24; Mount v. The State, 14 Ohio, R. 295. 3 Commonwealth v. Purchase, 2 Pick. 526. 4 Regina v. Thornhill, 8 C. & P. 575. 5 Rex v. Foster, 7 C. & P. 495. ACCESSORY. § 40. PERSONS participating in a crime are either Principals or Accessories. If the crime is a felony, they are alike felons. Principals are such either in the first or second degree. Principals in the first degree, are those who are the immediate perpetrators of the act. Principals in the second degree, are those who did not with their own hands commit the act, but were present, aiding and abetting it. It is not necessary, however, that this presence be strict, actual, and immediate, so as to make the person an eye or ear witness of what passes; it may be a constructive presence. Thus, if, several persons set out in concert, whether together or apart, upon a common design which is unlawful, each taking the part assigned to him, some to commit the fact, and others to watch at proper distances to prevent a surprise, or to favor the escape of the immediate actors; here, if the fact be committed, all are in the eye of the law present and principals; the immediate perpetrators, in the first degree, and the others in the second.1 But if the design is only to commit a small and inconsiderable trespass, such as robbing an orchard, or the like, and one of them, on a sudden affray, without the knowledge of the others, commits a felony, such, for example, as killing a pursuer, the others are not guilty of this felony. So, where one beat a constable, in the execution of his office, and after he had been parted from him and had entirely desisted, a friend of the party renewed the assault and killed the constable, the other party was held innocent of the killing, he, having been not 1 Foster, Crown Law, 349, 350; 1 Russ. on Crim. p. 26, 27; 1 Hawk. P. C. ch. 32, §7; Burr's case, 4 Cranch, 492, 493; 1 Hale, P. C. 439; Commonwealth v. Bowen, 13 Mass. 359. And see, on the subject of Accessories, Wharton's Am. Crim. Law, ch. 3, (2d ed.) at all engaged after they were first separated. But if, in the former case, there had been a general resolution against all opposers; or, in the latter, a previous agreement to obstruct the constable in the execution of his office, all would have been alike guilty as principals. The principal in the second degree must be in a situation in which he might render his assistance, in some manner, to the commission of the offence; and this, by agreement with the chief perpetrator.2 But the fact of conspiracy, is not alone sufficient to raise a presumption that all the conspirators were constructively present at the commission of the crime; though it may be considered by the jury as tending to prove their presence. If, however, it is proved that the prisoner was one of the conspirators, and was in a situation in which he might have given aid to the perpetrator at the time of the act done, it will be presumed that he was there for that purpose, unless he shows satisfactorily that he was there for another purpose, not connected with the crime. If the conspirators are alarmed and flee in different directions, and one of them maim a pursuer, to avoid being taken, the others are not to be considered as principals in that maiming.5 § 41. The presence alone of the party is not sufficient to constitute him a principal in the second degree, unless he was aiding and abetting the perpetrator. This implies assent to the crime; and mere bodily presence, without any attempt 1 Foster, 351, 352, 353; Regina v. Howell, 9 C. & P. 437; U. States v. Ross, 1 Gall. 624. 2 Foster, 350; 1 Hawk. P. C. b. 2, ch. 29, § 8; Knapp's case, 9 Pick. 518. 3 Ibid.; Rex v. Bostwick, 1 Doug. 207; Harden's case, 2 Dev. & Bat. 407. 4 Knapp's case, 9 Pick. 519. The friends of duellists, who go out with them, are present when the shot is fired, and return with them, though not acting as seconds, are principals in the second degree. Regina v. Young, 8 C. & P. 644. 5 Rex v. White, Russ. & Ry. 99. to prevent the crime, though it will not of itself constitute guilty participation, is evidence from which a Jury may infer his consent and concurrence. And though constructive presence consists in this, that it encourages the principal actor with the expectation of immediate aid, yet it is not necessary to prove that the party charged as principal in the second degree was actually present, at the place assigned, during the whole transaction; it being sufficient if he was there at the consummation of the offence.2 Thus, if one counsel another to commit suicide, and is present at the consummation of the act, he is principal in the murder; for it is the presumption of law, that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise, as, for example, that it was received with scoff, or manifestly rejected and ridiculed at the time it was given.3 § 42. An accessory before the fact is he who, being absent at the time of the felony committed, does yet procure, counsel, or command another to commit a felony. Words, amounting to a bare permission, will not alone constitute this offence. Neither will mere concealment of the design to commit a felony. It is not necessary to this degree of crime, that the connexion between the accessory and the actor be immediate; for if one procures another to cause a felony to be committed by some third person, and he does so, the procurer is accessory before the fact, though he never saw 1 Foster, 350; 1 Hale, P. C. 438. 2 Rex v. Dyer, 2 East, P. C. 767; Rex v. Atwell, Id. 768. If he only assists in disposing of the subject of the offence, after the crime is completed, as, in further carrying away stolen goods, he is but an accessory after the fact. Rex v. King, R. & Ry. 332; Norton's case, 8 Cow. 137. 3 Commonwealth v. Bowen, 13 Mass. 359; Rex v. Dyson, Russ. & Ry. 523; Regina v. Alison, 8 C. & P. 418. 4 1 Hale, P. C. 615. 5 Hawk. P. C. b. 2, ch. 29, § 16; Rex v. Soares, Rus. & Ry. 75; The People v. Norton, 8 Cowen, 137. 6 1 Hale, P. C. 374. or heard of the individual finally employed to commit the crime.1 § 43. There are no accessories before the fact in treason, nor in crimes under the degree of felony, all persons concerned in them being considered principals; nor in manslaughter, because the offence is considered in law sudden and unpremeditated.2 § 44. Where the principal acts under instructions from the accessory, it is not necessary, in order to affect the latter, that the instructions be proved to have been literally or precisely followed; it will be sufficient if it be shown that they have been substantially complied with.3 Thus, if one instructs another to commit a murder by poison, and he effects it with a sword, the former is accessory to the murder, for that was the principal thing to be done, and the substance of the instruction. So, if the person employed goes beyond his instructions, in the circumstances of the transaction, as if the design be to rob, and in doing this he kills the party, whether upon resistance made, or for concealment of the robbery; or, if the instructions be to burn the house of A., and the flames extend to the house of B., and burn that also; the person counselling and directing is accessory to the murder, in the former case, and to the burning of the second house, in the latter; because the second crime was a probable consequence of the first, and every sane man is presumed to foresee and assume the probable consequences of his own acts. So, if the party employed to commit a felony on one person, perpetrates it, by mistake, upon another, the party counselling, is accessory 1 Foster, 125, 126; Macdaniel's case, 19 How. St. Tr. 804; Earl of Somerset's case, 2 Howell's St. Tr. 965. 14. 2 1 Hale, P. C. 613, 615; 4 Bl. Comm. 35. 3 Ante, Vol. 1, § 65. 4 Foster, 369, 370. 5 Foster, 370; 1 Russell on Crimes, 35; Ante, Vol. 1, § 18; Supra, § 13, |