41 degree. So a boy under the age of fourteen,40 or a woman may be guilty of rape as accessary before the fact or as a principal in the second degree, according to the circumstances, by counseling, aiding, or abetting in the commission of the crime by another, although neither could actually commit the offense personally. In like manner a husband, though he cannot himself commit rape upon his wife, may counsel, aid or assist another to do so, and thus be guilty as principal in the second degree or accessary.12 And a woman may be guilty of carnal knowledge and abuse of a female under the age of consent by aiding and abetting a man in the commission of the offense.48 The same is true of other offenses. Thus, a person may be guilty as a principal in the second degree or accessary by counseling, aiding and abetting a bankrupt to violate the bankruptcy laws, or a postmaster to make a false return,45 or a mortgagor of personal property to sell or dispose of the same with intent to defraud the mortgagee,46 or an owner or master of a steamer to violate a statute requiring it to v. Van Schaick, 134 Fed. 592; United States v. Snyder, 14 Fed. 554. Connecticut. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465. Georgia. Bishop v. State, 118 Ga. 799, 45 S. E. 614. Iowa. State v. Rowe, 104 Iowa 323, 73 N. W. 833. Kansas. State v. Elliott, 61 Kan. 518, 59 Pac. 1047. Michigan. People v. Meisner, 178 Mich. 115, 144 N. W. 490; Shannon v. People, 5 Mich. 71. New York. People v. Peckens, 153 N. Y. 576, 47 N. E. 883. Oregon. State v. Case, 61 Ore. 265, 122 Pac. 304. That a person may be convicted for conspiracy to commit a crime which he could not himself commit, see § 510, infra. 40 Law v. Com., 75 Va. 885, 40 Am. Rep. 750. That he could not commit the offense personally, see § 897, infra. 41 State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; Campbell v. State, 63 Tex. Cr. 595, 141 S. W. 232, Ann. Cas. 1913 D 858. See also State v. Geddes, 22 Mont. 68, 55 Pac. 919. 42 State v. Comstock, 46 Iowa 265; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 19 Am. St. Rep. 568, 8 L. R. A. 297; Lord Audley's Case, 3 How. St. Tr. 401, 12 Mod. 384, 1 Strange 633. And see Com. v. Murphy, 2 Allen (Mass.) 163; Com. v. Fogerty, 8 Gray (Mass.) 489, 69 Am. Dec. 264. But if the principal is acquitted the husband must also be acquitted, in the absence of any force or intimidation used by him against the principal. State v. Haines, 51 La. Ann. 731, 25 So. 372. 43 State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465. 44 United States v. Young & Holland Co., 170 Fed. 110; United States v. Bayer, 4 Dill. 407, Fed. Cas. No. 15,547. 45 United States v. Snyder, 14 Fed. 554. 46 State v. Elliott, 61 Kan. 518, 59 Pac. 1047. be equipped with life preservers and fire fighting apparatus, or an election officer to violate the election law,48 or a public officer,49 or an agent or officer or employee of a corporation,50 to commit the crime of embezzlement, or agents or officers of a carrier to violate provisions of the Interstate Commerce Act applicable only to such agents or officers,51 though he could not personally commit the offense. On the same principle a white man may be accessary to murder committed by a slave; 52 an employee of a railroad company to whom a pass is issued, and who turns it over to a person not an employee, by whom it is used, may be convicted of aiding and abetting the latter to violate the federal statute relative to free transportation, although such statute exempts employees from its operation; 53 a person who does not have a weapon in his possession may be convicted of an assault with a dangerous weapon where he aids and abets another in committing such an assault, and the statute makes aiders and abettors principals; 54 and a convict serving a life sentence may be guilty of aiding and abetting a prisoner confined for a term less than life to escape or attempt to escape, though the law does not make it a crime for a person undergoing a life sentence to escape or attempt to escape.55 A man may be guilty of aiding and abetting a woman in concealing the death of her bastard child, though, under the statute, no one could be guilty as principal in the first degree except the mother; 56 an unmarried man may be guilty of aiding and abetting a married man in the commission of bigamy; 57 and a woman has been held guilty for aiding and abetting a man who falsely personated a sailor who was entitled to an allowance of money.58 The authorities are in conflict as to whether an unmarried person may be convicted as an aider and abettor to the crime of adultery solely by reason of 47 United States v. Van Schaick, 134 Fed. 592. 48 People v. McKane, 143 N. Y. 455, 38 N. E. 950. 49 State v. Rowe, 104 Iowa 323, 73 N. W. 833; State v. Cameron, 91 Ohio St. 50, 109 N. E. 584. 50 Bishop v. State, 118 Ga. 799, 45 S. E. 614; Thomas v. State, 45 Tex. Cr. 81, 73 S. W. 1045. 51 Billingsley v. United States, 249 Fed. 331, aff'g 242 Fed. 330, certiorari denied 247 U. S. 523, 62 L. Ed. 1247, 38 Sup. Ct. 583. 52 State v. Simmons, 1 Brev. (S. C.) 6; State v. Posey, 4 Strobh. (S. C.) 103. 58 United States v. Williams, 159 Fed. 310. 54 State v. Rosencranz, 40 N. D. 93, 168 N. W. 650. 55 People v. Creeks, 170 Cal. 368, 149 Pac. 821. 56 See § 1348, infra. 57 Boggus v. State, 34 Ga. 275. his or her participation in the sexual act with a married person of the other sex, where adultery may be committed by married persons only, but they are agreed that a conviction may be had where the unmarried. person aids and assists in the commission of the offense in some other way.59 Who may be accessaries after the fact is considered in another section.60 II. PRINCIPALS $ 225. In general. A principal is one who is the actual perpetrator of a crime, or who is present, aiding and abetting in the same.61 He acts his part individually and in furtherance of and during the consummation of the crime.62 All persons are principals who, being actually or constructively present, act together in the commission of an offense,68 or aid, abet or encourage those actually committing it.64 At common law, principals are divided into principals in the first degree,65 and principals in the second degree.66 But, as we have seen, 59 See § 1048, infra. 60 See § 244, infra. 61 Hately v. State, 15 Ga. 346. 62 Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Cook v. State, 14 Tex. App. 96. 68 McCoy v. State, 91 Miss. 257, 44 So. 814. In Texas the statute provides that all persons are principals who are guilty of acting together in the commission of an offense. Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Espinoza v. State, 73 Tex. Cr. 237, 165 S. W. 208; Drysdale v. State, 70 Tex. Cr. 273, 156 S. W. 685. An officer of an insolvent bank who, with knowledge of its insolvency, permits or consents to its receiving deposits through its employees, is liable for receiving such deposits as a principal and not as an accessary. State v. Cramer, 20 Idaho 639, 119 Pac. 30. 64 United States. Rooney v. United States, 203 Fed. 928. Mississippi. McCoy v. State, 91 Miss. 257, 44 So. 814. Missouri. Willi v. Lucas, 110 Mo. 219, 19 S. W. 726, 33 Am. St. Rep. 436. North Carolina. State v. Jarrell, 141 N. C. 722, 53 S. E. 127, 8 Ann. Cas. 438. Texas. Sapp v. State, 87 Tex. Cr. 606, 223 S. W. 459; Espinoza v. State, 73 Tex. Cr. 237, 165 S. W. 208; Campbell v. State, 63 Tex. Cr. 595, 141 S. W. 232, Ann. Cas. 1913 D 858; Davis v. State, 61 Tex. Cr. 611, 136 S. W. 45; Bass v. State, 59 Tex. Cr. 186, 127 S. W. 1020; Coffman v. State, 51 Tex. Cr. 478, 103 S. W. 1128. Wisconsin. Krueger v. State, 171 Wis. 566, 177 N. W. 917. 65 See § 226, infra. 66 See § 228, infra. this distinction has been expressly abolished by statute in many states.67 And some courts have refused to recognize it even in the absence of statute, and have held that all persons present aiding and abetting in the commission of a felony are principals and are equally guilty.68 § 226. Principals in the first degree-In general. A principal in the first degree is the one who actually commits the crime.69 And if two or more persons join in the actual perpetration of the criminal act, all are principals in the first degree.70 It is not necessary to make a person a principal in the first degree that he shall commit the crime by his own hand, nor even that he shall be actually present at the time it is committed. A person is guilty as principal in the first degree if he commits an offense by means of an inanimate agency set in motion by him, as where he leaves poison where another may get it, or sends poison to another through the mails, or obtains money by false pretenses by using the mails.71 The same is true of a person who procures the commission 67 See § 223, supra. 68 State v. Jarrell, 141 N. C. 722, 53 S. E. 127, 8 Ann. Cas. 438; State v. Hunter, 79 S. C. 73, 60 S. E. 240; State v. Putman, 18 S. C. 175, 44 Am. Rep. 569; State v. Fley, 2 Brev. (S. C.) 338, 4 Am. Dec. 583. A person who is present aiding and abetting in the commission of the offense may be charged as a principal and indicted alone. State v. Hunter, 79 S. C. 73, 60 S. E. 240. 69 4 Bl. Com. 34; 1 Hale P. C. 615. See also the following decisions: Alabama. Smith v. State, 8 Ala. App. 187, 62 So. 575. Arkansas. Williams v. State, 41 Florida. Albritton v. State, 32 Fla. Thornton v. State, 119 Louisiana. State v. Haines, 51 La. Ann. 731, 25 So. 372, 44 L. R. A. 837. Tennessee. Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. Texas. Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. Virginia. Horton v. Com., 99 Va. 848, 38 S. E. 184. Wisconsin. Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370. 70 Roney v. State, 76 Ga. 731; State v. Bailey, 63 W. Va. 668, 60 S. E. 785. It is possible for two persons jointly to steal the same articles. State v. Adam, 105 La. 737, 30 So. 101. If two persons wound a third, and he dies, both are principals in the homicide regardless of which inflicted the fatal wound. McCoy v. State, 91 Miss. 257, 44 So. 814; Espinoza v. State, 73 Tex. Cr. 237, 165 S. W. 208. 71 Fost. C. L. 349; 4 Bl. Com. 34; 3 Inst. 138; Hale P. C. c. LV; United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932. And see Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. of an offense by an innocent human agent,72 and where several persons combine to commit an offense, and each actually performs some act constituting a part of it, all are guilty as principals, though some may be absent when the others perform their part.78 And if death. results from a continuing breach of duty, it is not necessary, in order to constitute one guilty of such breach a principal that he be present when such death occurs. 74 § 227. Commission of offense by innocent agent. A person is guilty himself as the principal in the first degree, and not merely as a principal in the second degree or accessary before the fact, if he procures the commission of an offense by an innocent human agent, as by a person who is not guilty because of ignorance of fact, youth, or insanity.75 Thus, one who causes an innocent person to take poison, 72 See § 227, infra. 78 Com. v. Ahearn, 160 Mass. 300, 35 N. E. 853; Hess v. State, 5 Ohio 5, 12, 22 Am. Dec. 767; Lancaster v. State, 2 Okla. Crim. 681, 103 Pac. 1065; Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99. "Where the offense is committed by the perpetration of different parts which constitute one entire whole, it is not necessary that the offenders should be in fact together at the perpetration of the offense, to render them liable as principals. Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Cook v. State, 14 Tex. App. 96. An exception to the rule that a principal in the first degree must be present exists where two or more persons conspire or combine by concert of action to commit a crime, and it is done by one of them in the absence of the other or others. Here the crime is the act of all who so conspired. Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. Thus, if several persons combine to forge an instrument, and each executes by himself a distinct part of the forgery, in pursuance of the common plan, they are all guilty of the forg 74 As where passengers on a steamer which catches fire are killed because of a failure to provide proper life preservers and fire fighting appliances as required by statute. United States v. Van Schaick, 134 Fed. 592. 75 4 Bl. Com. 35; 1 East P. C. p. 228; 1 Hale P. C. 617; Hale P. C. c. LV. See also the following decisions: District of Columbia. Maxey v. United States, 30 App. Cas. 63. Georgia. Edwards v. State, 80 Ga. 127, 4 S. E. 268. And see Berry v State, 10 Ga. 511. |