In a case where the principal has already been convivted, it is not necessary to aver, in the indictment, that the principal committed the felony. It is sufficient to recite with certainty the record of his conviction.(e) In an indictment for a substantive felony, it does not seem necessary to allege the original offence with that particularity as to time and place, as in an indictment against the defendant together with the principal. (f) It is unnecessary to aver that the principal has not been convicted.(g) If the principal is unknown, the indictment may state the offence to have been committed by "some person or persons unknown."(h) But if he be known, the indictment must charge the offence to have been committed by him.(?) Evidence.] Where the principal and accessary are indicted together, it will be necessary, after proving the guilt of the principal, to prove that the accessary procured, hired, advised, or commanded the principal to commit the offence. If the person charged as accessary be proved to have been present, either actually or constructively, he must be acquitted; for the minor offence of accessary is merged in the greater one of principal.(k) In his defence he may controvert the guilt of his principal.(1) So he may prove that he countermanded the order, &c.; or that the crime which he advised was not that which the principal committed.(m) An accomplice is a competent witness, although his expectation of pardon depends upon the defendant's conviction. (n) So an accessary is a competent witness against his principal, and the principal against the accessary; as for instance, upon an indictment for receiving stolen goods, the person who stole the goods is a competent witness. (o) But the fact of the witness being an accomplice, accessary, or principal, detracts very materially from his credit ;(p) and it is always considered necessary to give other evidence confirmatory of at least some of the leading circumstances of his story, to show that he has told the truth as to the rest. (q) And if, upon an indictment against several, the accomplice be confirmed in the testimony he gives against some of the prisoners, but not as to the others, still this is holden a sufficient confirmation to warrant the convic (h) 2 East's P. C. 781. (i) 3 Camp. 264. 2 Leach, 925. (k) Matt. Dig. Cr. L. 9. 1 Leach, tion of all. (r) But where, upon an indictment against the principal and accessaries, the case was proved by an accomplice, who was confirmed as to the accessaries, but not as to the principal, the jury were directed to acquit the the prisoner.(s) The corroboration of an accomplice, ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offence charged against the prisoner.(t) If he be confirmed in the particulars of his story, he does not require confirmation as to the person charged.(u) But it is no confirmation of an accomplice in material facts, as against the others, that the robbery be proved to have been effected in the manner stated by him.(v) Where the direct charge rests for its proof upon the testimony of accomplices, such proof is sufficient to convict if it be corroborated by the evidence of credible witnesses; although such evidence has only an indirect tendency to establish the commission of the particular offence charged; as where the testimony of the accomplice fixes upon the prisoner the charge of having in his possession counterfeit bills, with the intent to pass, and the proof by the unimpeached witnesses shows that the prisoner was possessed of a press and plates used in making counterfeit impressions of bills. The confirmation of the accomplices must, however, be of some fact or facts which go to fix the guilt of the accused.(w) The rule of not convicting on testimony of an accomplice alone, equally applies where there is more than one accomplice.(x) The evidence of the wife of an accomplice is no confirmation of the testimony of her husband. For this purpose, they must be taken as one person.(y) The rule requiring the testimony of the accomplice to be corroborated by other evidence is not inflexible, however; for the jury may, if they please, act upon the evidence of an accomplice without any confirmation of his statement.(z) On an indictment against an accessary, in a case where the principal has been already convicted, the record of the latter's conviction, or at least an examined copy, must be produced. But its production will not prevent the accessary from proving the principal innocent. (a) 2d. Accessaries after the fact.] An accessary after the fact, at common law, is one who knowing a felony to have been committed by an (r) Id. ib. 3 Stark. 34, n. (8) Moo. & Malk. N. P. Rep. 326. (t) 6 Car. & Payne, 389. (v) 6 Car. & Payne, 595. (w) 21 Wend. 309. (x) 5 Car. & Payne, 326. (y) 7 id. 168. (z) Per Denman, C. J. 7 Car. & P. 152. (a) Matth. Dig. Cr. L. 10. Fost. 365, 368. 1 Leach, 228. other receives, relieves, comforts, or assists the felon.(b) Generally, any assistance whatsoever given to one known to be a felon, in order to hinder his being apprehended, tried or punished, is sufficient to bring a man within this description. (c) The revised statutes contain the following provision on this subject: "Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given such offender any other aid, knowing that he has committed a felony; with intent and in order that he may avoid, or escape from arrest or trial, conviction or punishment, and no others, shall be deemed an accessory after the fact, and upon conviction shall be punished by imprisonment in a state prison not exceeding five years, or in a county jail not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment. (d) The above provision of course supersedes the common law in all cases where the latter conflicts with, or varies from the former. instances, however, will, it is apprehended be found somewhat rare. Such The following doctrine seems to be sanctioned as well by the statute as at common law. Any assistance given to one known to be a felon, with intent and in order to prevent his being apprehended, tried, or punished is sufficient to render a man an accessary after the fact. As, for instance, concealing the felon in a house; shutting the door against his pursuers, so as to give the felon an opportunity of escaping; supplying the felon with money or a horse, in order to enable him to escape; bribing the jailor of the prison where the felon is confined to let him escape; conveying instruments to him to enable him to break prison, and the like.(e) But a mere omission, as not arresting the felon, will not make the party an accessary after the fact.(f) So, if a person supply a felon in prison with victuals or other necessaries for his sustenance; or relieve and maintain him if he be bailed out of prison ;(g) or if a physician or surgeon visit professionally a felon sick or wounded, though he know him to be a felon ;(h) or if a person assent to a forged note after it has been uttered;(i) or speak or write in order to obtain a felon's pardon or legal deliverance; none of these acts are sufficient to make the party an accessary after the fact.(k) (b) 4 Black. Com. 37. Arch. Cr. Pl. 9. 1 Russ. on Cr. 34. (c) 2 Hawk. P. C. 317. (d) 2 R. S. 699, § 7. (e) Arch. Cr. Pl. 9. 1 Hale's P. C. 619, 621. 1 Roscoe's Cr. Ev. 171. Russ. on Cr. 34. 4 Black. Com. 37, 38. (f) See 1 Hale's P. C. 619. Arch. Cr. Pl. 9. (g) 1 Hale, 620. (h) Id. 332. (i) Id. 684. (k) Arch. Cr. Pl. 9 And notwithstanding that the statute before quoted contains no express exception arising from the relation of husband and wife; yet it is doubtless as true under that provision as it is at common law that the wife of a felon is not to be deemed an accessary for acts committed by her in respect to her husband, where his coercion is presumed (1) The husband, however, may be an accessary for criminally aiding his wife who has committed a felony.(m) If the wife alone, the husband being ignorant of it, renders criminal assistance to a felon, the wife is accessary, and not the husband; for then his coercion is not to be presumed. Where, however, the husband and wife co-operate jointly in giving aid, &c. to a felon knowingly, it shall be adjudged the act of the husband solely, and the wife shall be acquitted. (n) And no other relation save that of husband and wife will excuse criminal aid and assistance furnished to felons. A father cannot assist his child in escaping; a child his parcnt; a brother his brother; a master his servant, or a servant his master.(o) Even one may make himself an accessary after the fact to a crime committed on himself; as by aiding the felon to escape, &c.(p) To constitute one an accessary after the fact, he must have notice direct or implied, at the time he renders the assistance to the felon, that he had committed a felony. The words of our statute, as has been seen, are "knowing that he has committed a felony ;" and this accords with the common law. (7) And the felony must be complete at the time of the assistance given; else it makes not the assistant a felon. As where one wounded another mortally and after the wound given but before death ensued, a person assisted or removed the delinquent, this would not, at common law, render him accessary to the homicide; for till death ensued there was no felony committed. (r) This rule seems to be perfectly consistent with our statute. We have before observed, that in all cases below the degree of felony there can be no accessaries. (s) This, moreover, so far as regards accessaries after the fact, is in express accordance with the before mentioned statutory provision on the subject. In high treason, likewise, there are no acessaries either before or after the fact; for the consenters, aiders, abettors, and knowing receivers and comforters of traitors are all principals.(t) But where the treason consists in harboring and receiving a traitor, the indictment or complaint must be special, for the receiving, &c. of the traitor, and not for the principal treason.(u) Although it be a settled principle of the common law, that an accessary cannot be tried before the conviction of his principal, without his consent, (v) yet he may nevertheless be arrested and secured to answer to an indictment, even before proceedings have been instituted against the principal. If the principal die before conviction, it seems the accessary never can be convicted. (w) And the acquittal of the principal, it seems, would be admissible evidence in defence of the accessary, though it would not be conclusive, in bar of a conviction.(x) The statute provides, however, that in an indictment against a person for receiving or buying stolen goods, it shall not be necessary to aver, nor on the trial to prove that the principal who stole the goods has been convicted.(y) If on the accessary being brought before the magistrate, it appear beyond all doubt that the principal is dead without having been convicted, or that he has been acquitted, the accessary should perhaps be discharged. But if there is any doubt about the fact, and there is probable ground for believing that the accessary is guilty, the magistrate should not discharge, but should secure him; so that the whole subject may undergo a deliberate and full investigation before the proper tribunal. An accessary 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.(z) Accessaries aíter the fact may be tried with their principals, or separately, after the principal has been convicted.(a) Accessaries after the fact to kidnapping are punishable by imprisonment in a state prison not exceeding six years; or in a county jail not exceeding one year; or by a fine not exceeding $500, or by both such fine and imprisonment. (b) Indictment.] Where the principal and accessary are indicted together, the indictment, after charging the principal offence to have been committed by the principal, should aver that the defendant knowing the offender to have commited a felony, did feloniously conceal him, or give him some (u) 1 Hale's P. C. 613. Arch. Cr. Pl. 10. Fost. 345. (v) 1 Hale, 623. 2 Hawk. P. C. ch. 29, § 45. 3 Mass. R. 126. 16 id. 423. 1 Murphy, 270. 2 Bailey, 66. (w) 16 Mass. Rep. 423. (a) 13 Wend. 592. |