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rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it (c) who is ignorant of its poisonous quality, (d) or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed. (e) And the same reasoning will hold, with regard to other murders committed in the absence of the

murderer, by means which he had prepared beforehand, and [*35] which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed: letting out a wild beast, with an intent to do mischief, or inciting a madman to commit murder, so that death thereupon ensues; in every of these cases the party offending is guilty of murder as a principal in the first degree. For he cannot be called an accessory; that necessarily pre-supposing a principal; and the poison, the pitfall, the beast, or the madman, cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessory, and cannot be so as accessory, it follows that he must be guilty as principal, and, if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist. (ƒ)

II. Accessories.- An accessory is he who is not the chief actor in the offence, nor present at its performance, but in some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine what offences admit of accessories, and what not: secondly, who may be an accessory, before the fact: thirdly, who may be an accessory after it: and, lastly, how accessories, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts, that make a man accessory in felony, making him a principal in high treason, upon account of the heinousness of the crime. (g) Besides it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the *very advice [*36] and abetment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or

(c) Kel. 52.
(d) Foster, 349.
(f) 1 Hal. P. C. 617. 2 Hawk. P. C. 613.

(e) 3 Inst. 138.

counsels another to commit suicide, and it is committed, the one so advising is guilty of murder. See Commonwealth v. Bowen, 13 Mass. 306. So, the seconds at a duel, if death ensue, are held as principals for murder. Reg. v. Young, 8 C. & P. 644. In some states the distinction between a principal in the first and in the second degree is abolished by statute. All concerned

(g) 3 Inst. 138. 1 Hal. P. C. 615.

in the commission of the offense, and all who aid or abet its commission, may be punished as principals.

A person may be principal in a crime in a state where, at the time, he is not, if he is instigator of the criminal act and accomplishes it through innocent agents. People v. Adams, 3 Denio, 190; S. C., 45 Am. Dec. 468.

prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor. (h) Iň petit treason, murder and felonies, with or without benefit of clergy, there may be accessories: except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact. (2) So, too, in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals; (k) the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals, propter odium delicti (on account of the heinousness of the offence); in trespass all are principals, because the law, quæ de minimis non curat (does not take cognizance of slight matters), does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim, that accessorius sequitur naturam sui principalis (the accessory follows the condition of his principal); () and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petit treason, and the stranger of murder. (m)

2. Accessory before the fact.-As to the second point, who may be an accessory before the fact; Sir Matthew Hale (n) defines him to be one who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory: for if such procurer, or the like, be present, he is guilty of the crime as prin

cipal. If A then advises B to kill another, and *B does it in [*37] the absence of A, now B is principal and A is accessory in the murder. And this holds, even though the party killed be not in rerum natura (in the nature of things-born) at the time of the advice given. As if A, the reputed father, advises B, the mother of a bastard child, unborn, to strangle it when born, and she does so; A is accessory to this murder. (o) And it is also settled, (p) that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A commands B to beat C, and B beats him so that he dies: B is guilty of murder as principal, and A as accessory. But if A commands B to burn C's house; and he, in so

(h) Foster, 842.
(m) 2 Hawk. P. C. 315.
1 It is no excuse for the party beat-
ing in such a case, that the command
was by a master to his servant, by a
parent to his child, or by any other
person occupying a position of author-

(i) 1 Hal. P. C. 615.
(n) 1 Hal. P. C. 616.

(k) Ibid. 613.

(l) 3 Inst. 139.

(0) Dyer, 186. (p) Foster, 125. ity; if the beating was unwarranted by law, both are criminally responsible. Commonwealth v. Drew, 3 Cush. 279; Hays v. State, 13 Mo. 246; State v. Bell, 5 Port. 365; Mitchell v. Harmony, 13

doing, commit a robbery; now A, though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature. (q) But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is stabbed or shot, and dies: the commander is still accessory to the murder; for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance. (r)

3. Accessory after the fact.- An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. (8) Therefore, to make an accessory ex post facto (after the fact), it is in the first place requisite that he knows of the felony committed. (t) In the next place he must receive, relieve, comfort, or assist him. And generally, any assistance whatever, given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his *pursuers, money or victuals to support him, a house or [*38] other shelter to conceal him, or open force and violence to rescue or protect him. (u) So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in gaol with clothes or other necessaries, is no offence; for the crime imputable to this species of accessory is the hinderance of public justice, by assisting the felon to escape the vengeance of the law. (v) To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law a mere misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon: (w) but now by the statutes 5 Ann. c. 31, and 4 Geo. I, c. 11, all such receivers are made accessories (where the principal felony admits of accessories), (x) and may be transported for fourteen years; and, in the case of receiving linen goods stolen from the bleaching-grounds, are by statute 18 Geo. II, c. 27, declared felons without benefit of clergy. In France such receivers are punished with death: and the Gothic constitutions distinguished also three sorts of thieves, “unum qui consilium daret, alterum qui contrecta

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How. 115; State v. Bugbee, 22 Vt. 32;
Curtis v. Knox, 2 Denio, 341.

1 See Regina v. Taunton, 9 C. and P. 309. Where the offense committed is not the precise one planned and advised, Mr. Justice Foster says the proper criterion to determine whether the adviser is involved in the legal guilt or not, is, "Did the principal commit the offense he stands charged with under the influence of the flagitious advice; and was the event, in the ordinary course of things, a probable consequence of that felony? or did he.

(8) 1 Hal. P. C. 618.
(v) 1 Hai. P. C. 620, 621.

following the suggestions of his own wicked heart, willfully and knowingly commit a felony of another kind?' Fost. 372.

As to accessories in general, see 1 Bish. Cr. L., 7th ed., ch. 47 and 48; 1 Arch. Cr. L., ch. 1; 1 Russ. on Cr., ch. 2.

2 See 1 Hale, P. C. 323, 622; Whart. Cr. L., § 146; 1 Bish. Cr. L., 7th ed., $ 692, 693.

3 These statutory provisions are repealed, and the death penalty abolished. The offense is now punished under statute 24 and 25 Vic. c. 96.

ret, tertium qui receptaret et occuleret; pari pœnæ singulos obnoxious" (he who should plan a robbery, he who should commit it, and thirdly, he who should receive and conceal the stolen goods; each liable to an equal degree of punishment). (y)

The felony must be complete at the time of the assistance given; else it makes not the assistant an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessory to the homicide; for, till death ensues, there is no felony committed. (2) But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of them com

[*39] mitted a *felony, the receivers become accessories ex post facto. (a) But a feme-covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord. (b)

4. Reason for distinction between principal and accessory. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. And the general rule of the ancient law (borrowed from the Gothic constitutions), (c) is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable: (d) as, by the laws of Athens, delinquents and their abettors were to receive the same punishment. (e) Why, then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself, when indicted; the commission of an actual robbery being quite a different accusation from that of harboring the robber. 2. Because, though by the ancient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them; accessories after the fact being still allowed the benefit of clergy in all cases, except horse-stealing (f) and stealing of linen from bleaching-grounds: (g) which is denied to the principals and accessories before the fact, in many cases, as, among others, in petit treason, murder, robbery, and wilful burning. (h) And perhaps if a distinction were constantly to be made between the punishment of principals and accessories, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself; as his

(y) Stiernhook, de jure Goth. 1. 3, c. 5. (z) 2 Hawk. P. C. 320. (a) 3 Inst. 108. 2 Hawk. P. C. 320. (b) 1 Hal. P. C. 621. (c) See Stiernhook, ibid. (e) Pott. Antiq. b. 1, c. 26. (f) Stat. 31 Eliz. c. 12. (g) Stat. 18 Geo. II, c. 27. (h) i Hal. P. C. 615.

(d) 3 Inst. 188.

1 This has been changed by statute in some states so that near relatives may

aid each other in such cases without becoming accessories after the fact.

[*40]

danger would be greater than that of his accomplices, by reason of the difference of his punishment. () 3. Because formerly no man could be tried as accessory till after the principal was convicted, or at least he must have been tried at the same time with him: though that law is now much altered, as will be shown. more fully in its proper place. 4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon is no acquittal of the felony itself; but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also. (k) i But it is clearly held, that one acquitted as a principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons, the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed.2

*CHAPTER IV.

OF OFFENCES AGAINST GOD AND RELIGION.

[*41]

Criminal law has regard to effect of act on society. In the present chapter we are to enter upon the detail of the several species of crimes and misdemeanors, with the punishments annexed to each by the laws of England. It was observed in the beginning of this book, (a) that crimes and misdemeanors are a breach and violation of the public rights and duties owing to the whole community, considered as a community, in its social aggregate capacity. And in

(1) Beccar. c. 37. (a) See page 5.

(k) 1 Hal. P. C. 625, 626. 2 Hawk. P. C. 373. Foster, 361.

1This is disputed by Hawkins and Foster. Hawkins, b. 2, c. 35, § 1; Foster, 361.

2 By statute 24 and 25 Vic., c. 94, an accessory before the fact to a felony may be indicted, tried, and punished as if he were a principal felon; and, by section 2, whoever shall counsel, procure or command any other person to commit a felony, shall be guilty of felony, and may be punished either as accessory before the fact, or for a substantive felony, and whether the prin cipal felon is previously convicted, or is amenable to justice or not. And, by section 3, accessories after the fact to a felony may be indicted and convicted of a substantive felony, whether the

principal felon shall or shall not be previously convicted, or amenable to justice or not.

In a number of the United States there are similar modifications of the common law relating to this subject. For the rule, in the absence of such statutes, see Stoops v. Commonwealth, 7 S. & R. 491; Commonwealth v. Knapp, 10 Pick. 477; State v. Duncan, 6 Ired. 98; Holmes v. Commonwealth, 25 Penn. St. 221; [McClain's Cr. L., § 204-210.]

As to charging accessories with a substantive felony, under statutes permitting that course, see State v. Weston, 9 Conn. 527; Noland v. State, 19 Ohio, 131; Shannon v. People, 5 Mich. 71.

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