(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 Conviction of princi pal no longer a prerequisite. 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 committed the crime must precede or accompany that of one charged as accessary. A prisoner does not waive his right to call for the record of such conviction, by pleading.3 Conviction 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 independent, 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." 5 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. 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. 2 See U. S. v. Crane, 4 McLean, 317, 1850; Com. v. Andrews, 3 Mass. 126, 1808; Com. v. Briggs, 5 Pick. 429, 1827; Com. v. Phillips, 16 Mass. 423, 1820; Baron v. People, 1 Parker C. R. 246, 1854; Brown v. State, 18 Ohio St. 496, 1868; Com. v. Williamson, 2 Va. Cas. 211, 1817; Smith v. State, 46 Ga. 298, 1872; State v. Pybass, 4 Humph. 442, 1843. As to N. Y. statutes, see supra, 205. Bowen v. State, 25 Fla. 645, 1889. 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, 1880; Ulmer v. State, 14 Ind. 52, 1860 ; Yoe v. People, 49 Ill. 410, 1869; State In North Carolina, the principle has been somewhat expanded, it having 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.1 Ogden v. State, 12 Wis. 532, 1861; several American statutes copy, only At common law an accessary is discharged by the acquittal of his principal on those charges whereon the indictment against himself is founded. U. S. v. Crane, 4 McLean, 317, 1850. Even in a case where the principal was indicted for burglary and larceny in a dwelling-house, and the accessary charged in the same indictment as accessary before the fact to the said "felony and burglary," and the jury acquitted the principal of the burglary, but found him guilty of the larceny, the judges, it is said, were of opinion that the accessary should have been acquitted; for the indictment charged him as accessary to the burglary only, and the principal being acquitted of that, the accessary should be acquitted also. R. v. Dannelly, R. & R. 310, 1818; 2 Marsh, 571. applies where the accessary might at common law have been indicted with or without the conviction of the principal; and, therefore, where a defendant was indicted as accessary before the fact to the murder of S. N., she having, by his procurement, killed herself, it was ruled that the statute did not apply. R. v. Russell, 1 Mood. C. C. 356, 1832; R. v. Gaylor, 7 Cox ? 244. At common law where the principal and accessary are tried together, if the principal plead otherwise than the general issue, the accessary is not bound to answer until the principal's plea be first determined. 9 H. 7, 19; 1 Hale, 624; 2 Inst. 184. Where the general issue is pleaded, however, the jury must be charged to inquire first of the principal, and if they find him not guilty, then to acquit the accessary; but if they find the principal guilty, they are then to inquire of the accessary, 1 Hale, 624; 2 Inst. 184, See Holmes v. Com., 25 Pa. 221, 1855. In Massachusetts an accessary before the fact may be tried in the county of the consummated act, though the act of accessaryship was committed elsewhere. Com. v. Pettes, 114 Mass. 307, 1873. See infra, 279, 287. In Virginia an accessary cannot be prosecuted for a substantive offence, but only as accessary to the principal felon. The guilt of the principal felon 1 R. v. Turner, 1 Mood. 347, 1833; State v. Ricker, 29 Me. 84, 1848; State v. Rand, 33 N. H. 216, 1856; Com. v. Knapp, 10 Pick. 477, 1829; Com. v. Stow, 1 Mass. 54, 1806; People v. Buckland, 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, State, 10 Sm. & M. 192, 1848. Infra, 1880. C. C. 253; Dears. & B. C. C. 288, 1855. It should be observed that the statute of 7 Geo. IV. c. 64, s. 9, which In Tennessee, where a principal to a murder was sentenced to imprisonment for life, in accordance with the 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.1 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.3 § 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.* Indict The indictment must show the commission of the offence as particularly as is necessary in an indictment against the prinment must cipal.5 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 ize offence. statute of 1838, c. 29, an accessary before the fact, subsequently tried and convicted (the jury bringing in a general verdict of guilty, without finding mitigating circumstances), was held to be properly sentenced to imprisonment for life. Nuthill v. State, 11 Humph. 247, 1850. As to Louisiana, see State v. Washington, 33 La. An. 1473, 1881. An accessary cannot take advantage of an error in the record against the principal. State v. Duncan, 6 Ired. 236, 1846; Com. v. Knapp, 10 Pick. 477, 1829. 1 See infra, 1405. 2 R. v. Turner, 1 Mood. C. C. 347, 1833; State v. Newport, 4 Harring. 567, 1847. 3 Ibid.; Ogden v. State, 12 Wis. 532, 1860. See, as taking a less restricted view of admissibility, U. S. v. Hartwell, supra; R. v. Blick, 4 C. & P. 377, 1830. State v. Sims, 2 Bail. (S. C.) 29, 1830; State v. Crank, Ibid. 66, 1831; Holmes v. Com., 25 Pa. 221, 1855. 5 Com. v. Dudley, 6 Leigh, 614, 1834; Jordan v. State, 56 Ga. 92, 1876. See People v. Schwartz, 32 Cal. 160, 1867; People v. Crenshaw, 46 Cal. 65, 1873; People v. Thrall, 50 Cal. 415, 1875. See State v. Mosley, 31 Kans. 355, 1883. 6 Campbell v. Com., 84 Pa. 187, 1877; Com. v. Hughes, 11 Phila. 430, 1876; Raiford v. State, 59 Mich. 106, 1883; Jordan v. State, 56 Ga. 92, 1876; State v. Zeibart, 40 Iowa, 169, 1875; Dempsey v. People, 47 Ill. 323, 1868; Yoe v. People, 49 Ill. 410, 1869; State v. Cassidy, 12 Kans. 550, 1873. See infra, 245; and see Whart. Pl. & Pr. 458; Ward v. Com., 14 Bush, 232, 1877. 7 R. v. Fallon, 9 Cox C. C. 242, 1869; R. v. Plant, 7 C. & P. 575, 1836; State v. Larkin, 49 N. H. 39, 1869; State v. Wyckoff, 2 Vroom, 65, 1868; Hughes v. State, 12 Ala. 458, 1847; Josephine v. State, 39 Miss. 613, 1866; Walrath v. State, 8 Nebr. 80, 1889. For other cases see infra, & 245. the fact, though by statute punishable as principal, must nevertheless be indicted, not as principal, but as accessary before the fact.1 § 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.2 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. Verdict Attempt. § 240. If the felony is not committed, he who counsels or commands its commission is not liable as accessary before the fact but he may be convicted for the attempt as a substantive misdemeanor, if steps were taken to consummate the offence.3 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. In England, the old common law has been modified by stat. 24 & 25 Vict., which limits the punishment to imprisonment for four years. See R. v. Fallon, L. & C. 217, 1869; 9 Cox, 242. 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, 48 Cal. 189, 1874. Infra, 245; Williams v. State, 41 Ark. 173, 1882. "Incite, move and procure, aid, counsel, hire, and command the said person as aforesaid unknown, the said felony and abortion in manner and form aforesaid to do and commit," has been sustained in Massachusetts as sufficiently describing the offence of an accessary before the fact. Com. v. Adams, 127 Mass. 15, 1880. Receiving stolen goods does not, at common law, constitute accessaryship after the fact to the larceny. It was otherwise by the statute 3 Will. & Mary. In most jurisdictions, however, the reception of stolen goods. 2 State v. Rose, 20 La. An. 143, is now an independent crime. See 1868. 32 East. R. 5, 1802; Ch. C. L. 264. Supra, & 173. What we call accessaryship after the fact is punished in Germany and France as an independent offence, in the nature of our Escape, or Prison VOL. I.-17 infra, 1982 et seq. Receiving money, knowing that it was obtained by robbery, does not constitute accessaryship after the fact at common law. Williams v. State, 55 Ga. 391, 1874. 257 |