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See Soare's case, Russ. and Ry. 25 (a). Davis's case, *Id. 113; Else's case, Id. 142; Badcock's case, Id. 249; King's case, Id. 332; M’Makin's case, Id. 333, (n.); Kelly's case, Id. 421; Stewart's case, Id. 363, all stated post.
What circumstances will render a party liable as a principal in particular offences, will be found stated in the subsequent part of this work.
Aiders and abettors-trial and punishment.] Aiders and abettors were formerly defined to be accessaries at the fact, and could not have been tried until the principal had been convicted or outlawed. Foster, 347. But it has been long settled, that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty, 2 Hale, 223, and may be convicted, though the party charged as principal in the first degree is acquitted. Taylor's case, 1 Leach, 360; Benson v. Offley, 2 Show. 510; 3 Mod. 121; Wallis's case, Salk. 334; Towle's case, R. and R. 314 (b); 3 Price, 145; 2 Marsh. 465.
Where a statute creates a felony, and punishes with death persons guilty thereof, without taking provision as to persons present aiding and abetting, principals in the second degree, are thereby punishable with death as well as principals in the first degree. Midwinter's case, Fost. App. 415. Coalheaver's case, 1 Leach, 66. So where a statute makes a common law felony, by name, punishable with death, as in the case of murder, &c., those present aiding and abetting in the offence are impliedly punishable with death, although the statute makes no mention of them. 1 Hale, 537; Fost. 359. Where, however, a statute imposes the punishment of death upon the person committing the offence, and not upon the offence by name, those present aiding and abetting merely are not punishable with death, the person only who actually committed the offence being deemed to be within the act. Fost. 356, 357; Paget's case, Fost. 355. But in this latter case, if the accessary be expressly within the statute as well as the party actually committing the offence, it must be deemed by necessary implication virtually to include the principal in the second degree. See Gogerley's case, R. and R. 343 (c).
This was the rule upon the construction of statutes before the abolition of the benefit of clergy, and it is still applicable, because by the 7 and 8 Geo. 4, c. 28, s. 7, no person can be punished with death unless it be for some felony, which was before excluded from the benefit of clergy, or made punishable with death by some subsequent statute. But this rule is now of less general importance, because the various statutes upon which these questions have arisen have been repealed. For the punishment of principals in the second degree under the modern statutes consolidating the law, which include the offences of most general occurrence, see post, p. 206. See further Archb. C. L. 642, 7th ed.
Considerable doubts formerly existed with regard to the punishment of [*203] aiders and abettors, but now by 7 and 8 Geo. 4, c. 29, s. 61, *in case of felony punished under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree is by
(a) 1 Eng. C. C. 25. (b) 1 Ibid. 314. (e) 1 Ibid. 343.
that act punishable. And by 7 and 8 Geo. 4, c. 30, s. 26, in the case of every felony punishable under that act, every principal in the second degree is punishable with death, or otherwise in the same manner as a principal in the first degree is by that act punishable. Manners's case, 7 C, and P. 801 (a). Young's case, 8 C. and P. 644 (b). See further post,
Proof with regard to accessaries before the fact.] An accessary before the fact, is defined by Lord Hale to be one who, being absent at the time of the offence committed, does yet procure, counsel, command or abet another to commit a felony. 1 Hale, P. C. 615. The bare concealment of a felony to be committed, will not make the party concealing it an accessary before the fact. 2 Hawk. c. 29, s. 23. So words amounting to a bare permission will not render a man an accessary, as if A. says he will kill J. S., and B. says "you may do your pleasure for me." Hawk. P. C. b. 2, c. 29, s. 16.
The procurement must be continuing; for if before the commission of the offence by the principal, the accessary countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as accessary. 1 Hale, P. C. 618. If the party was present when the offence was committed, he is not an accessary, and if indicted as such, he must be acquitted, but he may be subsequently indicted as a principal in the second degree. Gordon's case, 1 Leach, 515; 1 East, P. C. 352.
Proof with respect to accessaries before the fact by the intervention of a third person.] A person may render himself an accessary by the intervention of a third person, without any direct communication between himself and the principal. Thus if A. bid his servant hire somebody to murder B., and furnish him with money for that purpose, and the servant hires C., a person whom A. never saw or heard of, who commits the murder, A. is an accessary before the fact. Macdaniel's case, Fost. 125; Hawk. P. C. b. 2, c. 29, ss. 1, 11; 1 Russell, 31; Cooper's case, 5 C. and P. 535 (c).
Proof with regard to accessaries before the fact-degree of incitement.] Upon the subject of the degree of incitement and the force of persuasion used, no rule is laid down. That it was sufficient to effectuate the evil purpose is proved by the result. On principle, it seems that any degree of direct incitement, with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessary; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been committed, although the incitement had never taken place. 3 Stark. Ev. 8, 2d ed.
*Proof with regard to accessaries before the fact-princi- [ *204 ] pal varying from orders given to him.] With regard to those cases where the principal varies, in committing the offence, from the command or advice of the accessary, the following rules are laid down by Sir Mi
(a) Eng. Com. L. Rep. xxxii. 743. (b) ld. xxxiv. 564. (c) Id. xxiv. 444.
chael Foster. If the principal totally and substantially varies; if, being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal in substance complies with the command, varying only in the circumstances of time, or place, or manner of execution, in these cases the person soliciting to the offence, will, if absent, be an accessary before the fact, or if present, a principal. A. commands B. to murder C. by poison; B. does it by sword or other weapon, or by some other means; A. is accessary to this murder, for the murder of C. was the principal object, and that object is effected. So where the principal goes beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such order or advice, will be an accessary to that felony. A. upon some affront given by B., orders his servant to waylay him and beat him. The servant does so, and B. dies of the beating; A. is accessary to this murder. A. solicits B. to burn the house of C.; he does so, and the flames catching the house of D., that also is burnt. A. is an accessary to this felony. The principle in all these cases is, that though the event might be beyond the original intention of the accessary, yet as in the ordinary course of things, that event was the probable consequence of what was done under his influence, and at his instigation, he is in law answerable for the offence. Foster, 369, 370; see also 1 Hale, P. C. 617; Hawk. P. C. b. 2, c. 29, s. 18.
Where the principal wilfully commits a different crime from that which he is commanded or advised to commit, the party counselling him, will not, as above stated, be guilty as accessary. But whether, where the principal by mistake, commits a different crime, the party commanding or advising him shall stand excused, has been the subject of much discussion. It is said by Lord Hale, that if A. command B. to kill C., and B. by mistake kills D., or else in striking at C. kills D., but misses C.; A. is not accessary to the murder of D., because it differs in the person. 1 Hale, P. C. 617, citing 3 Inst. 51; Saunders' case, Plow. Com. 475. The circumstances of Saunders' case, cited by Lord Hale, were these: Saunders, with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it to her to eat, and the wife having eaten a small part of it, and given the remainder to their child, Saunders making only a faint attempt to save the child, whom he loved and would not have destroyed, stood by and saw it eat the poison, of which it soon afterwards died. It was held that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessary to the murder.
Upon the law as laid down by Lord Hale, and upon Saunders' [*205 ] *case, Mr. Justice Foster has made the following observations, and has suggested this case: B. is an utter stranger to the person of C., and A. therefore takes upon himself to describe him by his stature, dress, &c., and acquaints B. when and where he may probably be met with. B. is punctual at the time and place, and D., a person in the opinion of B. answering the description, unhappily coming by, is murdered under a strong belief on the part of B., that he is the man marked out for destruction. Who is answerable? Undoubtedly A.: the malice on his part egreditur personam. The pit, which he, with a murderous intention, dug
for C., D. fell into and perished. Through his guilt, B. not knowing the person of C., had no other guide to lead him to his prey than to the description of A., and in following this guide he fell into a mistake, which it is great odds any man in his circumstances might have fallen into. "I, therefore," continues the learned writer, as at present advised, conceived that A. was answerable for the consequences of the flagitious orders he gave, since, that consequence appears in the ordinary course of things to have been highly probable." Foster, 370..
With regard to Archer's case, the same learned author, observes, that the judges did not think it advisable to deliver him in the ordinary course of justice by judgment of acquittal, but for example's sake, kept him in prison by frequent reprieves from session to session, till he had procured a pardon from the crown. Ibid. 371.
Mr. Justice Foster then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to rest. Did the principal commit the felony he stands charged with, under the flagitious advice, and was the event in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject? Foster, 372, see also Hawk. P. C. b. 2, c. 29, s. 22.
Proof with regard to accessaries before the fact-what offences admit of accessaries.]. With regard to the particular offences which admit of accessaries, it is held that in high treason there can be no accessaries, but all are principals, every act of incitement, aid or protection, which in felony would render a man an accessary before or after the fact, in the case of high treason, (whether by common law or by statute) making him a principal. Foster, 341; 4 Bl. Com. 35. So in all offences below felony there can be no accessaries. 1 Hale, P. C. 613; 4 Bl. Com. 36 (1). Also in manslaughter there can be no accessaries before the fact, for the offence is sudden and unpremeditated, and, therefore, if A. be indicted for murder, and B. as accessary, if the jury find A. guilty of manslaughter, they must acquit B. 1 Hale, 347, 450, 616. It is said in the older books, that in forgery all are principals, (see 2 East, P. C. 973,) but this, it appears, must be understood of forgery at common law, which is a misdemeanor. Id.
*Where a statute creates a new felony, without mentioning [ *206 ] accessaries, yet the law respecting accessaries is applicable to the new offence. 1 Hale, P. C. 613,614; 2 East, P. C. 973; 1 Russell, 32. See ante, p. 202.
Accessaries before the fact-trial and punishment.] Before the statute 7 Geo. 4, c. 64, accessaries could not be punished until the guilt of the principal offender was established (2). It was necessary, therefore, either to try them after the principal had been convicted, or upon the same indictment with him, and the latter was the usual course. 1 Russell, 36.
(1) State v. Westfield, 1 Bailey, 132. 4 J. J. Marsh. 182. Curlin v. The State, 4 Yerger, 143.
(2) Commonwealth v. Andrews, 3 Mass. 136. State v. Groff, 1 Murph. 270. An accessary in a felony, cannot be put upon his trial, if the principal be dead, without conviction. Com monwealth v. Phillips, 16 Mass. 423. See Russell on C. & M. 21, n. A.
But now by the 9th section of the above statute, it is enacted, "that if any person shall counsel, procure, or command any other person to commit any felony, whether the same shall be a felony at common law, or by virtue of any statute or statutes made or to be made, the person so counselling, procuring, or commanding, shall be deemed guilty of felony, and may be indicted and convicted, either as an accessary before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as an accessary before the fact to the same felony, if convicted as an accessary, may be punished; and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place with the principal felony, although such offence may have been committed either on the high seas, or at any place on land, whether within his majesty's dominions or without.
And that in case the principal felony shall have been committed within the body of any county, and the offence of counselling, procuring, or commanding, shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, determined, and punished in either of such counties: provided always, that no person, who shall be once duly tried for any such offence, whether as an accessary before the fact or as for a substantive felony, shall be liable to be again indicted or tried for the same offence."
By the larceny act, 7 and 8 Geo. 4, c. 29, s. 61, and the act relating to malicious injuries to property, 7 and 8 Geo. 4, c. 30, s. 26, in the case of every felony punishable under those acts, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise in the same manner as the principal in the first degree is by those acts punishable, and every accessary after the fact to any felony punishable under those acts, shall, on conviction, be liable to be imprisoned for any term not exceeding two years, and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punish| *207] able under *those acts, shall be liable to be indicted and punished as a principal offender.
And by the act relative to offences against the person, 9 Geo. 4, c. 31, s. 31, "every accessary before the fact to any felony punishable under this act, for whom no punishment has been therein provided, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned without hard labor in the common gaol or house of correction, for any term not exceeding three years; and every accessary after the fact to any felony punishable under this act, (except murder) shall be liable to be imprisoned with or without hard labor in the common gaol or house of correction for any term not exceeding two years, and every person who shall counsel, aid, or abet the commission of any misdemeanor punishable under this act, shall be liable to be proceeded against as a principal offender."