sons combine or conspire to commit a crime, each is responsible for all acts committed by the others in the execution of the common design, and which are a natural or probable consequence of the unlawful combination or undertaking, whether such acts were expressly contemplated or assented to by him or not.41

The acts or words of encouragement and abetting must have been done or used with the intention of encouraging and abetting the perpetrator of the offense. If there was no such intention the mere fact that such was their effect is not sufficient.42

§ 236. Specific intent. When a specific intent is necessary to constitute a particular crime, one cannot be a principal in the second degree to that particular offense or an aider and abettor in its commission unless he entertains such an intent, or knows that the party actually doing the act entertains such intent.43 So in order to convict a person as an aider and abettor to murder where a specific intent to kill is a necessary element of that offense, it must be shown that he knew or believed that the person who committed the homicide intended to kill, or that he himself acted with such intent.44 And

homicide, although he may become involved in an independent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result, or purposely incites or encourages the principal to do the act. Woolweaver v. State, 50 Ohio St. 277, 34 N. E. 352, 40 Am. St. Rep. 667.

41 See $260, infra.

42 Hicks v. United States, 150 U. S. 442, 37 L. Ed. 1137, 14 Sup. Ct. 144; People v. Sweeney, 161 N. Y. App. Div. 221, 146 N. Y. Supp. 637, aff'd 213 N. Y. 37, 106 N. E. 913; People v. Zucker, 20 N. Y. App. Div. 363, 46 N. Y. Supp. 766, aff'd 154 N. Y. 770, 49 N. E. 1102.

43 Jordan v. State, 81 Ala. 20, 1 So. 577; Thornton v. State, 119 Ga. 437, 46 S. E. 640; Espinoza v. State, 73 Tex. Cr. 237, 165 S. W. 208. And see the cases cited in the following notes.

Georgia. Thornton v. State, 119 Ga. 437, 46 S. E. 640.

Iowa. State v. Phillips, 118 Iowa 660, 92 N. W. 876.

Texas. Espinoza v. State, 73 Tex. . Cr. 237, 165 S. W. 208; Chapman v. State, 43 Tex. Cr. 328, 65 S. W. 1098, 96 Am. St. Rep. 874; Leslie v. State, 42 Tex. Cr. 65, 57 S. W. 659.

Virginia. Horton v. Com., 99 Va. 848, 38 S. E. 184; Reynolds v. Com., 33 Gratt. 834.

It is sufficient if he entertained the intent to kill, or knew that the person doing the killing entertained such an intent. Singleton v. State, 106 Ala. 49, 17 So. 327; Jolly v. State, 94 Ala. 19, 10 So. 606.

One cannot be convicted of murder 44 Alabama. Singleton v. State, 106 as a principal in the second degree

the same principle applies in the prosecution of aiders and abettors. for assault with intent to kill,45 or to do great bodily harm,46 or to rob,47 or for robbery.48

III. ACCESSARIES

§ 237. In general. "An accessary is one who is not the chief actor in the felonious offense, nor present at its perpetration, but is in some way concerned therein either before or after the act is committed."' 49 Accessaries are divided into accessaries before 50 and after 51 the fact. The same person may be an accessary both before and after the fact.52 But one who is a principal cannot be an accessary after the fact.58 In many states, as we have seen, accessaries before the fact are made principals,54 and where such is the case those who would be accessaries after the fact at common law are sometimes called accessaries.55 In some states the statute calls those who would be accessaries before the fact at common law accomplices, and applies the term accessaries to accessaries after the fact only.56 Under some

unless he had a felonious design. So he cannot be convicted if the actual perpetrator had no such design, or if he had and such design was unknown to the defendant, who had no such design himself. Brown v. State, 28 Ga. 199.

45 Tanner v. State, 92 Ala. 1, 9 So. 613; White v. People, 139 Ill. 143, 28 N. E. 1083, 32 Am. St. Rep. 196; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; Reg. v. Cruse, 8 Car. & P. 541.

But if he knows that an assault is made with intent to murder, and is present as an accomplice to encourage, aid or assist in its execution, it is not necessary to show that he himself entertained such an intent or malice against the victim. Jolly v. State, 94 Ala. 19, 10 So. 606.

46 State v. Pasnau, 118 Iowa 501, 92 N. W. 682.

47 People v. Belton, 160 Mich. 416, 125 N. W. 386.

48 Com. v. Ryan, 154 Mass. 422, 28 N. E. 289.

49 4 Black Com. 35; Smith v. State, 8 Ala. App. 187, 62 So. 575.

And see to the same effect, Cantrell v. State, 141 Ga. 98, 80 S. E. 649; Reed v. Com., 125 Ky. 126, 100 S. W. 856; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504.

50 See § 238, infra.

51 See § 243, infra.

52 Springer v. State, 102 Ga. 447, 30 S. E. 971; Minor v. State, 58 Ga. 551; Able v. Com., 5 Bush (68 Ky.) 698; Rex v. Blackson, 8 Car. & P. 43. And see Norton v. People, 8 Cow. (N. Y.) 137.

53 See § 244, infra.
54 See § 223, supra.

55 Sturgis v. State, 2 Okla. Crim. 362, 102 Pac. 57.

56 State v. Jackson, 3 Boyce (26 Del.) 279, 82 Atl. 824; State v. McCallister, 7 Pennew. (Del.) 301, 76 Atl. 226; Hightower v. State, 78 Tex. Cr. 606, 182 S. W. 492; Fondren v. State, 74 Tex. Cr. 552, 169 S. W. 411; Strong v. State, 52 Tex. Cr. 133, 105 S. W. 785.

statutes a person who counsels, hires or procures a felony to be committed may be indicted and convicted as an accessary or for a substantive offense.57

§ 238. Accessaries before the fact-In general. An accessary before the fact is one who procures, commands, or counsels the commission of a felony by another, but who is not present, either actually or constructively, when the felony is committed.58 His acts must all

have been done prior to the commission of the offense and at the time of its commission he must be doing nothing in furtherance of the common purpose.59

As we have seen, statutes in many states abolish the distinction between principals and accessaries before the fact, and make persons who would have been accessaries before the fact at common law principals.60 And in some of the states where the distinction is still preserved accessaries before the fact are called accomplices by the statute.61

§ 239. Commission of the felony. Before a person can be convicted as an accessary before the fact the crime charged must be shown to have been committed.62 It must be shown that there was a principal,63 and that he was guilty of the main offense.64 And, in the ab sence of a statutory provision to the contrary, if the person charged as principal has been acquitted,65 or for any reason his act was not criminal,66 a person charged as accessary before the fact cannot be convicted. Whether principals and accessaries may be convicted of different grades or degrees of a crime is considered in another section,67

171 Wis. 566, 177 N. W. 917; Vogel v. State, 138 Wis. 315, 119 N. W. 190; Spear v. Hiles, 67 Wis. 361, 30 N. W. 511.

59 Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99; Gonzales v. State, 74 Tex. Cr. 458, 171 S. W. 1146; Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Bean v. State, 17 Tex. App. 60; Cook v. State, 14 Tex. App. 96.

60 See § 223, supra.

61 See § 237, supra.

62 Kentucky. Reed v. Com., 125 Ky. 126, 100 S. W. 856.

Massachusetts. Com. v. Asherow ski, 196 Mass. 342, 82 N. E. 13.

Montana. State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655.

Nevada. State v. Jones, 7 Nev.

408.

New Jersey. State v. Fiore, 85 N. J. L 311, 88 Atl. 1039.

Texas. Hall v. State, 52 Tex. Cr. 250, 106 S. W. 379.

West Virginia. State v. Ellison, 49 W. Va. 70, 38 S. E. 574.

If a specific intent is an essential ingredient of the main offense, the principal must be shown to have acted with that intent. So to convict one

as

an accessary before the fact to the crime of burning an insured building with intent to defraud the insurer, it must be shown that the principal had that intent. Com. v. Asherowski, 196 Mass. 342, 82 N. E. 13.

63 State v. Jones, 7 Nev. 408; Fon dren v. State, 74 Tex. Cr. 552, 169 S. W. 411; Kaufman v. State, 70 Tex. Cr. 438, 159 S. W. 58; State v. Bailey, 63 W. Va. 668, 60 S. E. 785; State v. Lilly, 47 W. Va. 496, 35 S. E. 837.

64 See § 256, infra.

65 See § 253, infra.

66 See § 264, infra.

67 See § 257, infra.

§ 240. Absence when offense committed. To be an accessary before the fact a party must be absent at the time the deed is done,68 for, as we have seen, actual or constructive presence makes one a principal in the second degree, as distinguished from an accessary.69

§ 241. Procurement, command or counsel. To make a person an accessary before the fact he must have procured, commanded, or counseled the commission of the offense,70 and he must have been connected in some way with the crime charged and under investigation. It is not sufficient that he may have been allied or connected with the principal in some prior criminal transaction.71 Words that sound in bare permission are not enough,72 nor is bare nondisclosure