accessary before the fact merely. a Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man an accessary after the fact; as, for instance, that he concealed him in his house, b or shut the door against his pursuers, until he should have an opportunity of escaping, c or took money from him to allow him to escape, d or supplied him with money, a horse, or other necessaries, in order to enable him to escape, e or that the principal was in prison, and the defendant, before conviction, bribed the jailer to let him escape, or supplied him with materials to effect the same purpose.f Merely suffering the felon to escape, however, will not charge the party so doing, such amounting to a mere omission. So, if a person supply a felon in prison with victuals or other necessaries, for his sustenance; h or succor and sustain him if he be bailed out of prison; i or professionally attend a felon sick or wounded, although he know him to be a felon ; or speak or write in order to obtain a felon's pardon or deliverance, k or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly ; l or even if he himself agree, for money, not to give evidence against the felon ; m or know of the felony and do not discover it;n it seems that these acts will not be sufficient to make the party an accessary after the fact.

(b.) Knowledge of Principal's Guilt essential.

§ 147. Two things are laid down in the books as necessary to constitute a man accessary after the fact to the felony of another. 1. The felony must be complete. o

2. The defendant must know that the felon is guilty; p and this, therefore, is always averred in the indictment. q And

f 1 Hale, 621; Hawk. b. 2, c. 29, Hawk. c. 29, s. 35; Harrol v. State, 39

though it seems to have been doubted whether an implied notice of the felony will not, in some cases, suffice: as where a man receives a felon in the same county in which he has been attainted, which is supposed to have been a matter of notoriety; it seems to be the better opinion, that some more particular evidence is requisite to raise the presumption of knowledge. 8 The only relation which excuses the harboring a felon, is that of a wife to her husband, because she is considered as subject to his control, as well as bound to him by affection. t But at common law, no other ties, however near, will excuse; for if the husband protect the wife, the father his son, or a brother his brother, they contract the guilt, and are liable to the punishment of accessaries to the original felony. u

v

(c.) Procedure.

§ 149. Where the principal and accessary are joined in an indictment, and tried separately, the record of the principal's conviction is, primâ facie, evidence of his guilt, upon the trial of the accessary; and as the burden of proof is on the accessary, he must show clearly that the principal ought not to have been convicted. But the accessary, in such case, is not restricted to proof of facts that were not shown on the former trial, and which are incompatible with the guilt of the principal. w The record of the conviction of a slave before a court of magistrates and freeholders as principal in a felony (i. e. murder) may be given in evidence on the trial of an indictment against a free white man as accessary before the fact. x In New York, a copy of the original minutes of the court, in which the principal was convicted, if entered according to the direction of the statute, is proper evidence against an accessary before the fact; it appearing that no record of judgment of such conviction has been signed and filed; and it is reasonable to suppose, that the original minutes are equally sufficient. y But the rough minutes, or original entries,

&c.

r Dyer, 355; Staunf. 41 b.

s 1 Hale, 323, 622; 3 P. Wms. 475,

t 1 Hale, 621; Hawk. b. 2, c. 29, s. 34; 4 Bla. Com. 39; Com. Dig. Jus. T. 2.

u Ibid. In Massachusetts this is expanded. See ante, § 96.

v Com. v. Knapp, 10 Pick, 484; State v. Chittem, 2 Devereux, 49; State v. Duncan, 6 Iredell, 236.

w Com. v. Knapp, 10 Pick. 484. x State v. Sims, 2 Bail. S. C. Rep. 29; State v. Crank, Ibid. 66.

y People v. Gray, 25 Wendell, 465.

not inspected or approved by the court, according to the statutes, are not evidence. z

§ 150. An accessary cannot be convicted on an indictment charging him as principal. z1

5. Liability of Principal for Criminal Act of Agent.

§ 151. The cases under this head may be classed as follows: (a.) Where the Agent acts directly under the Principal's Commands.

§ 152. In this case there is no doubt as to the principal's liability. In misdemeanors the act may be charged to have been done by the principal himself, without reference to an agent. Such, also, is the case in felonies, where the agent is innocent, insane, or a slave, in which case the party commanding the felony to be done, though absent at the time of its commission, is principal in the first degree.c

(b.) Where the Agent is acting at the Time in the Line of the Principal's Business, but without Specific Instructions.

§ 153. A principal is primâ facie liable for the alleged acts of an agent done in a general course of business authorized by the principal. el Thus where a bar-keeper in a hotel sells liquor, or a salesman in a bookstore in the usual course of business sells a libellous book, or where a clerk publishes a libel in a newspaper, the principal is responsible, and, if there be no other evidence, may be convicted.d Even the fact that the principal, who was the publisher of a newspaper, was living at the time one hundred

z People v. Gray, 25 Wendell, 465. 21 Hughes v. State, 12 Ala. 458; Josephine v. State, 39 Miss. 613; State v. Wyckoff, 2 Vroom, 65; People v. Campbell, 40 Cal. 129 ; R. v. Fallon, 9 Cox C. C. 242. Under Illinois Statutes, contra, Dempsey v. People, 47 Ill. 323; Yoe v. People, 49 Ill. 410; ante, $142.

b Ante, § 131; post, § 2374, 2436. c Ante, § 112-13; post, § 2436. c1 Com. v. Nichols, 10 Met. 259; R. v. Dixon, 3 M. & S. 11.

d R. v. Almon, 5 Burrow, 2686; R. v. Dodd, 2 Sessions Cases, 33; Com. v. Park, 1 Gray, 553; State v. Mathis, 1 Hill S. C. 37; Britain v. State, 3 Humph. 203, 33; R. v. Gutch, Moody & M. 433 ; Com. v. Nichols, 10 Metc. 259; Com. v. Gillespie, 7 S. & R. 469; Com. v. Major, 6 Dana, 293; Att. Gen. v. Riddle, 2 Cromp. & J. 493; Com. v. Metrop. R. R. 107 Mass. 236; Com. v. Morgan, 107 Mass. 199. 1 Bennett & Heard Lead. Cas. 241. Post, § 594, 1003 a, 2374, 2436.

miles distant from the place of publication, was at the time sick and entirely ignorant of the libel being published, is no defence.e But it is otherwise if the agent be without authority, express or implied, and the act be not in the range of the agent's business, and against the principal's express and bona fide commands.f

(c.) When the Principal resides out of the Jurisdiction.

§ 154. In this case, as will hereafter be more fully seen,g the principal is chargeable in the particular venue for his acts done in it, notwithstanding his non-residence at the time. h

e R. v. Gutch, Moody & M. 433. ƒ Barnes v. State, 19 Conn. 398; Hipp v. State, 5 Blackf. 149; post, § 1003 a; Com. v. Nichols, 10 Metc. 259. See post, § 2436.

g Post, § 210 m.

152

Denio, 190;

h People v. Adams, Adams v. People, 1 Comstock, 173; R. v. Garrett, 22 Law & Eq. 607; 6 Cox C. C. R. 260; Com. v. Gillespie, 7 S. & R. 469; U. S. v. Davis, 2 Sumn. 482. Post, § 210 m.

CHAPTER IV.

IN WHAT COURTS INDICTMENTS ARE COGNIZABLE.

1. OF WHAT OFFENCES THE FED-, III. CONFLICT AND CONCURRENCE ERAL JUDICIARY HAS COGNI