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ite who is ignorant of its poisonous quality, 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. 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 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 exciting 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 can not be called an accessory, that necessarily pre-supposing a principal; and the poison, the pitfall, the beast, or the madman can not be held principals, being only the instruments of death. As, therefore, he must be certainly guilty, either as principal or accessory, and can not 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.f
1 What of fenses admit of accessories.
II. An accessory is he who is not the chief actor in the offense, nor present at its performance, but is 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 offenses 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 offenses 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. 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 accesso
c Kel., 52.
d Foster, 349.
e 3 Inst., 138.
f Hal., P. C., 617; 2 Haw., P. C.,
3 Inst., 138; 1 Hal., P. C., 613.
(3) See the last note.
son who is an accessory to a murder or other felony before the fact, are subject to the same punishment as principals in the first degree. The concealment of an offender after the commission of a felony, with knowledge of the commission of the crime, or aiding him so that he may avoid or escape arrest, trial, conviction, or punishment, constitutes the person an accessory after the fact, and subjects him to punishment, varying from fine and imprisonment in the county jail to five years' imprisonment in the state prison.—(2 R. S., 699, § 6, 7.) An accessory before or after the fact may be indicted, tried, convicted, and punished, notwithstanding the principal felon may have been pardoned or otherwise discharged after his conviction.-(2 R. S., 727, § 49.)
ries before the fact, since the very advice and abetment amount [ 36 ] 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 prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor. In petit treason, murder, and felonies, with or without benefit of clergy, there may be accessories, except only in those offenses which, by judgment of law, are sudden and unpremeditated, as manslaughter and the like, which therefore can not have any accessories before the fact. 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 ; the same rule holding with regard to the highest and lowest offenses, though upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim that accessorius sequitur naturam sui principalis ; and, therefore, an accessory can not 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. As to the second point, who may be an accessory before 2. Accesso the fact, Sir Matthew Halen defines him to be one who, being fact. ry before the 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- [ 37 ] cipal. If A., then, advises B. to kill another, and B. does it in 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 naturâ 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. And it is also settledp 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
h Foster, 342.
i 1 Hal., P. C., 615.
13 Inst., 139.
(4) See ante, p. 16, n. 10.
m2 Hawk., P. C., 315.
a 1 Hal., P. C., 615, 616.
• Dyer, 186.
P Foster, 125.
(5) See ante, p. 16, n. 10.
3. Accessory after the fact.
3. An accessory after the fact may be where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is, in the first place, requisite that he knows of the felony committed. 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 assister an accessory. [ 38 ] As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him." So, likewise, to convey instruments to a felon to enable him to break jail, or to bribe the jailer to let him escape, makes a man an accessory to the felony. But to relieve a felon in jail with clothes or other necessaries is no offense; 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. 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 ; 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"), 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 ben
91 Hal., P. C., 617.
a Ibid., 317, 318.
1 Hal., P. C., 620, 621.
w Foster, 73.
(6) And an implied notice will not (7) See 7 & 8 Geo. IV., c. 29, s. 54suffice. 1 Hale, 323, 622; 3 P. Wms. 56; and see more upon this subject in 496. [CHITTY.]
* See ante, p. 35, n. *.
efit 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 contractaret, tertium qui receptaret et occuleret; pari pænæ singulos obnoxios."x*
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. 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 committed a felony, [ 39 ] the receivers become accessories ex post facto. But a femecovert can not 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.a
ment of ac
4. The last point of inquiry is, how accessories are to be 4. Punishtreated, considered distinct from principals. And the general cessories. rule of the ancient law (borrowed from the Gothic constitutions) is this, that accessories shall suffer the same punishment as their principals; if one be liable to death, the other is also liable; as, by the laws of Athens, delinquents and their abettors were to receive the same punishment.d 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
* Stiernhook, De Jure Goth., 1. 3, c. 5. y 2 Hawk., P. C., 320.
* 3 Inst., 108; 2 Hawk., P. C., 320. a 1 Hal., P. C., 621.
(8) Clergy was restored for this of fense by the stat. 51 Geo. III., c. 41, which subjected the offender to transportation or imprisonment. And see now the 7 & 8 Geo. IV., c. 29, s. 54; post, 132.
b See Stiernhook, ibid.
c 3 Inst., 188.
d Pott., Antiq., b. 1, c. 26.
(9) Not under the present code, which subjects this offense to the same punishment as the principal offender. Code Penal, lib. 2, arts. 62, 63.
(10) The plea and prayer of clergy
* Receivers of stolen goods are not declared accessories by any statute in New York, but are subject to the punishment of accessories after the fact.-(2 R. S.. 680, § 71.)
distinction is made between them; accessories after the fact being still allowed the benefit of clergy in all cases except horse-stealinge" and stealing of linen from bleaching grounds,f which is denied to the principals and accessories before the fact, in many cases; as, among others, in petit treason, murder, robbery, and willful burning.g" 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 [ 40 ] finding a person to execute the deed itself, as his 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 afterward be indicted as principal; for an acquittal of receiving or counseling 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 afterward indicted as accessory before the fact; since those offenses are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also. But it is clearly held that one acquitted as principal may be indicted as an accessory after the fact; since that is
e Stat. 31 Eliz., c. 12.
f Stat. 18 Geo. II., c. 27.
are now abolished. 7 Geo. IV., c. 28, Geo. IV., c. 31, s. 3. Accessories after
(11) Now punishable only (in the principals) with transportation for a term not exceeding 15 nor less than 10 years, or imprisonment for a term not exceeding 3 years. 1 Vict., c. 90, s. 1. See post, 238.
(12) Ante, n. (8).
(13) Accessories before the fact are now in almost all cases subject to the same punishment as the principal offendSee the stats. 7 & 8 Geo. IV., c. 29, s. 61, and c. 30, s. 26; 9 Geo. IV., c. 31, s. 19, 21, 22, 31; 1 Will. IV., c. 66, s. 25; 2 Will. IV., c. 34, s. 18; 1 Vict., c. 36, s. 35; c. 85, s. 7; c. 86, s. 6; c. 87, s. 9; c. 88, s. 4; c. 89, s. 11. Accessories after the fact to murder may be transported for life, or imprisoned for any term not exceeding four years. 9
h Beccar., c. 37.
i 1 Hal., P. C., 625, 626. 2 Hawk., P. C., 373. Foster, 361.
(14) As to where and when accessories are now to be tried, see post, 323.
(15) But see 1 Mood., C. C., 417; 7 C. & P., 836; by which authorities it appears to be established, that an acquittal as principal is no bar to an indictment as accessory, and è converso.
*See ante, p. 35, n. *.