or to give poison to another, and thereby causes death, is as much the principal in the first degree in the murder as if the poison had been administered by his own hand.76 And the same is true of one who delivers counterfeit money or a forged instrument to a child of tender years, or to an innocent adult, with instructions to utter the same, which is done,77 and of one who procures an innocent person to sign another's name to a note by falsely representing that the person whose name is signed has authorized it,78 or who procures an innocent agent to commit larceny, or receive stolen goods,79 or who obtains. money by false pretenses through such an agent,80 or who sells to an innocent purchaser as his own property belonging to another.81 And one who incites a woman to produce a miscarriage on herself in his absence resulting in death may be convicted as a principal, homicide. Johnson v. State (Ala.), 38 So. 182. Massachusetts. Com. v. Hill, 11 Mass. 136. New York. Adams v. People, 1 N. Y. 173; People v. Adams, 3 Den. 190, 45 Am. Dec. 468; People v. McMurray, 4 Park. Cr. 234. Tennessee. See Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. Texas. Smith v. State, 21 Tex. App. 107, 17 S. W. 552. West Virginia. Weil v. Black, 76 W. Va. 685, 86 S. E. 666; State v. Bailey, 63 W. Va. 668, 60 S. E. 785. England. Reg. v. Bleasdale, 2 Car. & K. 765; Reg. v. Bannen, 2 Moody C. C. 309. In Texas, where the distinction between principals in the first and second degree has been abolished, such a person is expressly declared by statute to be a principal. Bunker v. State, 77 Tex. Cr. 38, 177 S. W. 108; Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Davis v. State, 61 Tex. Cr. 611, 136 S. W. 45; Farris v. State, 55 Tex. Cr. 481, 117 S. W. 798, 131 Am. St. Rep. 824; Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. One who frees a lunatic's hand so he may shoot an officer attempting to arrest him is responsible for the In Edwards v. State, 80 Ga. 127, 4 S. E. 268, it was intimated that a person who knowingly receives stolen goods from an infant so young as to be incapable of committing a crime might be convicted of the larceny of the goods. 76 Brunson v. State, 12 Ala. 37, 27 So. 410; Reg. v. Michael, 9 Car. & P. 356, 2 Moody C. C. 120; Gore's Case, 9 Coke 81a. See also Rex v. Harley, 4 Car. & P. 369. 77 Com. v. Hill, 11 Mass. 136; Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774; Rex v. Palmer, 2 Leach C. C. 978; Rex v. Giles, 1 Moody C. C. 166. 78 Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774; Reg. v. Clifford, 2 Car. & K. 202. 79 Rice v. State, 118 Ga. 48, 44 S. E. 805, 98 Am. St. Rep. 99; People v. McMurray, 4 Park. Cr. (N. Y.) 234. 80 Adams v. People, 1 N. Y. 173. 81 A person who sells as his own an animal running on the range to an innocent purchaser, who takes possession of it, is a principal to the theft and not an accessary. Farris v. State, 55 Tex. Cr. 481, 117 S. W. 798, 131 Am. St. Rep. 824. where a woman who procures her own miscarriage is not guilty of any offense. 82 This cannot be the case, however, if the person by whose hand the deed is done is himself a guilty agent. In such case the agent is himself the principal in the first degree, and the person at whose instigation he acts is either a coprincipal in the first degree, or a principal in the second degree, or an accessary before the fact, depending upon whether he is present or absent when the offense is committed, and the part he takes in its commission.88 § 228. Principals in the second degree, aiders and abettors—In general. A principal in the second degree is one who is actually or constructively present when a felony is committed by another, and who aids or abets in its commission.84 82 Maxey v. United States, 30 App. Cas. (D. C.) 63; Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. Rep. 340. As to whether the woman is guilty of an offense see § 373, infra. 83 Kentucky. Able v. Com., 5 Bush. (68 Ky.) 698. New York. People v. Lyon, 99 N. Y. 210, 1 N. E. 673; People v. Adams, 3 Denio 190, 45 Am. Dec. 468, aff'd 1 N. Y. 173, 4 How. Prac. 295; Wixson v. People, 5 Park. Cr. 119; People v. McMurray, 4 Park. Cr. 234. Ohio. St. 305. Anderson v. State, 22 Ohio Texas. Farris v. State, 55 Tex. Cr. 481, 117 S. W. 798, 131 Am. St. Rep. 824. West Virginia. Weil v. Black, 76 W. Va. 685, 86 S. E. 666; State v. Bailey, 63 W. Va. 668, 60 S. E. 785. England. Reg. v. Jefferies, 3 Cox C. C. 85; Reg. v. Manley, 1 Cox C. C. 104; Rex. v. Soares, Russ. & R. 25. See Reg. v. Flatman, 14 Cox C. C. 396, where one was convicted of larceny in procuring the owner's wife to carry away furniture for the purpose of furnishing lodgings in which prisoner and the wife lived in adultery. 84 4 Bl. Com. 34; 1 Hale P. C. 615; Crown at Salop, 1 Plowd. 97. See also the following decisions: Alabama. State v. Tally, 102 Ala. 25, 15 So. 722; Smith v. State, 8 Ala. App. 187, 62 So. 575. Arkansas. Williams v. State, 41 Ark. 173. Connecticut. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465. Florida. Albritton v. State, 32 Fla. 358, 13 So. 955; Montague v. State, 17 Fla. 662. Georgia. Thornton v. State, 119 Ga. 437, 46 S. E. 640; Pope v. State, 13 Ga. App. 711, 79 S. E. 909; August v. State, 11 Ga. App. 798, 76 S. E. 164. Louisiana. State v. Walters, 135 La. 1070, 66 So. 364. Missouri. See State v. Brown, 104 Mo. 365, 16 S. W. 406. North Carolina. State v. Rowland Lumber Co., 153 N. C. 610, 69 S. E. 58. 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. § 229. Presence when offense is committed-In general. Presence, actual or constructive, at the time the offense is committed, is necessary to render one a principal in the second degree,85 or a principal in those states where the distinction between principals in the first and second degree has been abolished but the distinction between principals and accessaries before the fact is preserved.86 If a person procures or counsels the commission of a crime by another, and is absent when it is committed, he is merely an accessary.87 & M. 212. 86 Richardson v. United States, 181 Fed. 1; Skidmore v. State, 80 Neb. 698, 115 N. W. 288; Silvas v. State, 71 Tex. Cr. 213, 159 S. W. 223; Davis v. State, 61 Tex. Cr. 611, 136 S. W. 45; s. c., 55 Tex. Cr. 495, 117 S. W. 159; Schwartz v. State, 55 Tex. Cr. 36, 114 S. W. 809; O'Quinn v. State, 55 Tex. Cr. 18, 115 S. W. 39; Dawson v. State, 38 Tex. Cr. 50, 41 S. W. 599; Vogel v. State, 138 Wis. 315, 119 N. W. 190. To constitute a principal, the of fender must either be present where the crime is committed, or must do some act during the time when it is being committed which connects him with the act of commission in some of the ways named in the statute. Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Bean v. State, 17 Tex. App. 60. Acts done after the commission of the offense, by one not present at its commission, and which are independent of and disconnected with its actual commission do not make one a principal. Davis v. State, 55 Tex. Cr. 495, 117 S. W. 159; O'Quinn v. State, 55 Tex. Cr. 18, 115 S. W. 39; Dawson v. State, 38 Tex. Cr. 50, 41 S. W. 599. As to statutes abolishing the distinction, see § 223, supra. Louisiana. State v. Walters, 135 Nebraska. Skidmore v. State, 80 Texas. Silvas v. State, 71 Tex. Cr. 213, 159 S. W. 223; Davis v. State, 61 Tex. Cr. 611, 136 S. W. 45; s. c., 55 Tex. Cr. 495, 117 S. W. 159. West Virginia. State v. Bailey, 63 W. Va. 668, 60 S. E. 785; State v. Prater, 52 W. Va. 132, 43 S. E. 230. Presence is not necessary, however, in those states where the statute abolishes the distinction between principals and accessaries before the fact, and makes those who would have been accessaries before the fact at common law principals.88 § 230. Constructive presence. It is not necessary, in order to charge one as a principal in the second degree, as distinguished from an accessary before the fact, that there shall be a strict, actual, and immediate presence at the time and place of the commission of the offense. Nor is it necessary that he shall be an eye or ear witness of the criminal act. A person is constructively present, and therefore guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise, or is so situated as to be able to aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise.89 Thus a England. Reg. v. Tuckwell, Car. & M. 215; Reg. v. Jeffries, 3 Cox C. C. 85; Rex v. Stewart, Russ. & R. 363; Rex v. Soares, Russ. & R. 25. See also § 240, infra. Thus, where a servant let a person into his master's house on an afternoon, and concealed him there all night, in order that he might commit a larceny in the house, but left the house early the next morning, and was absent when the larceny was committed, it was held that he was not a principal in the second degree, but an accessary before the fact. Reg. v. Tuckwell, Car. & M. 215; Reg. v. Jeffries, 3 Cox C. C. 85. Compare Rex v. Jordan, 7 Car. & P. 432. 88 McMahan v. State, 168 Ala. 70, 53 So. 89; State v. Brown, 25 Iowa 561; People v. Bliven, 112 N. Y. 79, 19 N. E. 638, 8 Am. St. Rep. 701; People v. Winant, 24 N. Y. Misc. 361, 53 N. Y. Supp. 695; State v. Lewis, 51 Ore. 467, 94 Pac. 831. As to statutes abolishing the distinction, see § 223, supra. 89 1 Hale P. C. 439, 462, 537; Fost. C. L. 349, 350. See also the following decisions: Indiana. Doan v. State, 26 Ind. Massachusetts. Com. v. Clune, 162 382. Green v. State, 13 Mo. Nebraska. Skidmore v. State, 80 Neb. 698, 115 N. W. 288. Nevada. State v. Hamilton, 13 Nev. 386; State v. Squaires, 2 Nev. 226. New York. McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. Ohio. Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340. person who watches near by to prevent surprise or interference while a confederate breaks and enters a house with felonious intent, or robs a man, or sets fire to a building, or commits a larceny, or any other felony, is guilty as a principal in the second degree, though he may not be near enough to see the other commit the offense.90 And one who pursuant to an agreement to commit a robbery, goes Texas. Gonzales v. State, 74 Tex. Cr. 458, 171 S. W. 1146; Bass v. State, 59 Tex. Cr. 186, 127 S. W. 1020; Earp v. State (Tex. App.), 13 S. W. 888. Virginia. Horton v. Com., 99 Va. 848, 38 S. E. 184; Mitchell v. Com., 33 Gratt. 845, 868; Dull v. Com., 25 Gratt. 965. West Virginia. State v. Cremeans, 62 W. Va. 134, 57 S. E. 405. England. Rex v. Standley, Russ. & R. 305. "If several unite in one common design to do some unlawful act, and each takes the part assigned him, though all are not actually present, yet all are present in the eye of the law." Per Wright, J., in Hess v. State, 5 Ohio 5, 22 Am. Dec. 767. In Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, it was held that, where two or more persons conspire to break into a store in the nighttime, and steal therein, and it is agreed between them that, in order to facilitate the burglary, and lessen the danger of detection, one of them shall entice the owner of the store to a house a mile distant from the store, and detain him there, while the others break into the store, and remove the goods, and the parties perform their respective parts of the agreement, the person who thus entices the owner away, and detains him, is constructively present at the burglary, and guilty as a principal in the second degree. If several act in concert to steal a man's goods, and he is induced by fraud to trust one of them, in the presence of the others, with the possession of the goods, and another of them entices him away, so that the one who has the goods may carry them away, all are guilty of the larceny. Rex v. Standley, Russ. & R. 305. Where a person, in pursuance of a preconcerted plan, devised by himself, remains downstairs in his own house while his confederate above steals money from a lodger, and brings it down, and delivers it to him, he is a principal in the larceny. Com. v. Lucas, 2 Allen (Mass.) 170. One of several persons acting in concert, who leads a girl's escort away, while his confederates rape the girl, is a principal in the second degree, though not actually present at the time of the rape. People v. Batterson, 50 Hun. (N. Y.) 44, 2 N. Y. Supp. 376. See also § 231, infra. 90 Indiana. Doan v. State, 26 Ind. 495; Tate v. State, 6 Black f. 110. Iowa. State v. Nash, 7 Iowa 347. Nebraska. Dixon v. State, 46 Neb. 298, 64 N. W. 961. Nevada. State v. Squaires, 2 Nev. 226. New York. McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. Vermont. State v. Valwell, 66 Va. 558, 29 Atl. 1018. Virginia. Mitchell V. Com., 33 Gratt. 845, 868. England. Rex v. Passey, 7 Car. & P. 282; Rex v. Gogerly, Russ. & R. 343. See also § 231, infra. |