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when it is completed, and this is so even where each does not know by whom the other parts are executed.1

So also, where two persons with their umbrella screened a third while he was breaking into a dwelling house in the day time, and then went away and were not seen near the place while the third party was committing a larceny in the house.”

(0) Mere presence is not enough to constitute a party a principal in the second degree; but there must be some participation. It must be shown, either that the party did the act (when he would be principal in the first degree), or that he was present when it was done, and did some act at the time in aid, which shows that he was present aiding and assisting, or that he was of the same party in the same pursuit, and under the same expectation of mutual support and defence with those who committed the crime;3 for it is necessary that the party should say or do something, showing his consent to the felonious purpose, and contributing to its execution; or else that he should come with others with intent to do the mischief, though only one does it. So, therefore, if two persons are fighting and a third comes by and looks on but assists neither, he is not guilty of homicide in any degree in case one of them be killed;5 and in all cases where there is no common purpose, a person who is merely present at a murder, but neither takes any part in it nor endeavors to prevent it, nor apprehends the murderer, nor raises hue and cry after him, although such behavior is highly reprehensible, it will not, of itself, render him a principal.

But this aid and participation need not amount to more than watching to prevent a surprise to his companions, or remaining at a convenient distance to favor their escape, or being in a situation to render assistance if necessary, the knowledge of which would be calculated to inspire confidence in his comrades.?

· Rex. o. Bingley, R. & R., 446; R. v. Kirkwood, R. & M., 304; R. v. Dade, Id., 307.

; R. v. Jordan, 7 C. & P., 432.

: 1 Russ. on Cr., 27; R. v. Borthwick, Dougl., 207; 1 Hale, 439; Foster, 350; 9 Ire., 440.

• 3 Wash. C. C., 223; 1 Wis. Rep., 159; 1 Hale, 439, 440; Foster, 350; 9 Iredell, 440.

• 1 Hale, 439.
• Fost., 350.
'Com. . Knapp, 9 Peck, 496; 5 Porter, 32; Russ. & Ry., 305.

(c) There should be a felonious intention to the felony, for a mere participation in the act without a felonious participation in the design, will not be sufficient."

The purpose must be unlawful, for if the original intention was lawful and prosecuted by lawful means, and opposition is made by others, and one of the opposing party is killed in the struggle, in that case the person actually killing may be guilty of murder or manslaughter, as circumstancas may vary the case; but the other persons who are present and do not actually aid and abet, are not guilty as principals in the second degree, for they assembled for another purpose which was lawful, and consequently the guilt of the person actually killing cannot, by any fiction of law, be carried against them beyond their original intention.

So, also, if a master assault another with malice prepense, and the servant ignorant of his master's felonious design, take part with him and kill the other, it is manslaughter in the servant, and murder in the master.3

SECTION III.

OF ACCESSORIES BEFORE THE FACT.

An accessory is he who is not the chief actor in the offence, nor present at its performance, but is in some way concerned therein either before or after the fact committed, and absence is indispensably necessary to constitute one an accessory, for if he be actually or constructively present when the felony is committed, he is an aider and abettor, and not an accessory before the fact.5

An accessory before the fact, is he who being absent at the time of the offence committed, yet doth procure, counsel, command or abet another to commit a felony. And it seems that those who by hire, command, counsel or conspiracy, and those who by showing an express liking, approbation or assent to another's felonious design of committing a felony, abet and encourage him to commit it, but are so far absent when he actually commits it that he could not be encouraged by the hopes of any immediate help or assistance from them, are accessories before the fact.1

* 1 East. P. C., 257; R. v. Plumer, Kel., 109. • 1 Arch. Cr. Pl., 12, notes; Fost., 354, 355; 2 Hawk. P. C., ch. 29, § 9. 3 1 Hale, 466. * 4 Blac. Com., 35.

5 1 Hale's P. C., 615; 1 Leach, 515; 1 East. P. C., 352; 4 Blac. Com., 36-37; 15 Geo. Rep., 346.

It makes no difference if there be some variance in time, place, manner or other circumstance, between the advice or command and the execution of the felony, if it be afterwards committed the same in substance with that counselled or commanded ; as where a person advises a man to kill another in the day, and he kills him in the night; or to kill him in the fields, and he kills him in the town; or to poison him, and he stabs or shoots him ; in all these cases he is as much an accessory as if his advice or command had been strictly pursued.?

But if the execution of the felony vary in substance from the advice or command, as if a man advise another to kill A, and he kills B; or to burn the house of A, and he burns the house of B; or to steal an ox, and he steals a horse; or to steal a particular horse, and he steals another; or to commit a felony of one kind, and he commits another of quite a different nature; in these and the like cases, the party who advised and commanded, &c., cannot be deemed an accessory before the fact to the felony actually committed.3

In cases where the principal goes beyond the terms of the solicitation, yet, if in the event, the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony.*

As if A advise B to rob C, and in robbing him B kills him, either upon resistance made or to conceal the fact, or if A solicit B to burn the house of C, and B does it accordingly, and the flames taking hold of the house of D, that likewise is burnt. In these cases A is accessory to B both in the murder of C and in the burning of the house of D, for the events, though possibly falling out beyond his original intention, were in the ordinary course of things the probable consequences of what B did under the influence and at the instigation of A.'

' 1 Russ. on Cr., 30; 1 Hale, 615 ; Hawk. P. C., ch. 29, § 16; 4 Blac. Com., 37; 1 Leach, 515. Vide Car. & M., 215.

* 1 Arch. Cr. Pl., 14; 2 Hawk., ch. 29, $ 20.

' 1 Arch. Cr. Pl., 15; 2 Hawk., ch. 29, $ 21; Fost., 369; 1 Hale, 617; 1 Russ. on Cr., 35.

• 1 Russ. on Cr., 35.

Difficult questions have sometimes arisen where the principal, by mistake, commits a different crime from that to which he was solicited by the accessory. Mr. Justice FOSTER proposed the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to turn: "Did the principal commit the felony he stands charged with, under the influence of the flagitious advice, and was the event in the ordinary course of things a probable conseqnence of that felony, or did he, following the suggestions of his own wicked heart, willfully and knowingly commit a felony of another kind, or upon a different subject. But where the principal willfully commits a different crime from that which he is advised or commanded to commit, the party counseling him will not, as above stated, be guilty as an accessory.

It is not necessary, in order to constitute the offence of accessory, that there should be any direct communication between him and the principal; the procurement may be through the intervention of an agent. And if managed through an agent it is not necessary that the principal should be named by the accessory, for if the latter desire the agent to procure some person to commit the offence without naming him, and the agent accordingly procure a person, wholly unknown to the accessory, to commit it, it will be sufficient to constitute the offence of accessory before the fact.4

Thus, if A bid his servant to hire somebody, no matter whom, to murder B, and furnish him with money for that purpose, and the servant procure C, a person whom A never saw or heard of, to do it; A who is manifestly the first mover and contriver of the murder, is an accessory before the fact.

Mr. STARKIE says: 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, was proved by the result; on principle it seems that any degree of direct incitement, with the actual intent to procure the consummation of the

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illegal object, is sufficient to constitute the guilt of the accessory, 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.1

If an accessory repents, and, before the execution of the offence, countermands the principal, yet the principal proceeds in the execution thereof, the procurer is not an accessory, for his consent does not continue.?

He who barely conceals a felony which he knows to be intended, is not an accessory before the fact ;; neither will the use of words that amount to a bare permission, make an accessory. As if A says, that he will kill J. S., and B says, "you may do your pleasure, for me. "4

It has been held in this State that an accessory before the fact to a murder is guilty of murder.5

Although an accessory before the fact, upon conviction, is liable to be punished as the principal in the first degree, yet the distinction between principals and accessories, is not one of form merely, but is material, and founded on principle, and relates to the regularity of criminal proceedings; and, therefore, one indicted as principal, cannot be convicted on testimony showing him to have been only accessory before the fact.

SECTION IV.

OF ACCESSORIES AFTER THE FACT.

An accessory after the fact says Lord HALE, is where a person knowing the felony to be committed by another, receives, relieves, comforts or assists the felon,' whether he be a principal or an accessory before the fact.

By our Revised Statutes, it is provided, that every person who

* 2 Stark. Ev., 8, 2d ed. • 1 Hale, 617; 1 Russ. on Cr., 35. s 1 Hale 616; 2 Hawk. P. C., ch. 29, § 23. • 1 Russ. on Cr. 31; Hawk. P. C., ch. 29, § 16. • Peo. v. Mosher, 4 Wend. 229. & Peo. o. Katz, 23 How., 93. '1 Hale's P. C., 618; 2 Bla. Com., 38. • 2 Hawk., ch. 29, § 1; 3 P. Wms., 475.

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