held that one does not become an accessary by concealing the commission of the crime out of regard for his own safety, and not with a design to shield the criminal.40 IV. COUNTERMAND OR WITHDRAWAL § 250. In general. A person is not guilty of a crime as accessary or principal in the second degree because of counseling or consenting, if he repented and countermanded the other party, or withdrew, to the knowledge of the other, before the crime was committed.41 To relieve him from liability under this rule, however, he must in some way inform his confederates of his change of purpose.42 But if his Misc. 300, 43 N. Y. Supp. 44; People v. Dunn, 53 Hun (N. Y.) 381, 6 N. Y. Supp. 305. 40 McFalls v. State, 66 Ark. 16, 48 S. W. 492; Carroll v. State, 45 Ark. 539; Melton v. State, 43 Ark. 367. 41 1 Hale P. C. 617, 618. See also the following decisions: California. People V. Schoedde, 126 Cal. 373, 58 Pac. 859. Connecticut. State V. Allen, 47 Conn. 121. Georgia. Pinkard v. State, 30 Ga. 757. Oklahoma. Wilson v. United States, 5 Ind. Terr. 610, 82 S. W. 924. England. Rex V. Richardson, 1 Leach C. C. 387; Saunder's Case, 2 Plowd. 473n. This rule as applied to accessaries before the fact is thus stated by Sir Matthew Hale: "If A. commands B. to kill C., but before the execution thereof A. repents, and countermands B., and yet B. proceeds in the execution thereof, A. is not accessary, for his consent continues not, and he gave timely countermand to B. But if A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessary."' 1 Halė P. C. 617, 618. If the defendant and another agree to commit suicide, and the defendant afterwards abandons his purpose, and informs the other person of that fact, aud endeavors to persuade him to also abandon it, he is not responsible if the other person kills himself. State v. Webb, 216 Mo. 378, 115 S. W. 998, 20 L. R. A. (N. S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas. 518. But a defendant cannot occupy the inconsistent position of denying the procurement and at the same time contending that he repented and countermanded it. State v. Kinchen, 126 La. 39, 52 So. 185. 42 So, if several prisoners conspire to escape from prison, and to kill any watchman who may oppose them, and in making the attempt one of them kills a watchman one of them is none the less guilty because he abandons the attempt and returns to his cell before the killing, if he does nothing by word or deed to inform his confederates of his change of purpose. State v. Allen, 47 Conn. 121; Wilson v. United States, 5 Ind. Terr. 610, 82 S. W. 924. Where a murder is committed by two persons, both of whom had been counseled and incited by the defendant to commit it, it is no defense that he had countermanded one of them in the absence of evidence that he had also countermanded the other. State v. Kinchen, 126 La. 39, 52 So. 185. act of withdrawal is known to them and is such as should naturally inform them of his intention to abandon the attempt, he is not responsible merely because they misconstrue his act, and suppose that he is still acting with them.48 V. PROSECUTION AND PUNISHMENT § 251. Principals in the second degree, aiders and abettors. The law recognizes no difference, as respects the punishment, between the offense of principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is so far immaterial that, on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abetting, and vice versa. And the same is true of persons present aiding and abetting, where the statute abolishes the distinction between principals in the first and second degree and makes all such persons principals.44 43 State v. Allen, 47 Conn. 121. 441 Archb. Crim. Pr. & Pl. 13; Fost. 350, 351; 1 Hale P. C. 437. See also the following decisions: Arkansas. Hunter v. State, 104 Ark. 245, 149 S. W. 99. California. People v. Ah Fat, 48 Cal. 61. Florida. Albritton v. State, 32 Fla. 358, 13 So. 955. Georgia. August v. State, 11 Ga. App. 798, 76 S. E. 164. Illinois. Lionetti v. People, 183 Ill. 253, 55 N. E. 668; Coates v. People, 72 Ill. 303. Under the statute making one who would be a principal in the second degree at common law a principal, he must be charged as a principal. Usselton v. People, 149 Ill. 612, 36 N. E. 952. Indiana. Williams v. State, 47 Ind. 568; Doan v. State, 26 Ind. 495. Iowa. State v. McCray, 179 N. W. 627. Iowa Kentucky. Vance v. Com. (Ky.), 115 S. W. 774; Reed v. Com., 125 Ky. 126, 100 S. W. 856; Mulligan v. Com., 84 Ky. 229, 1 S. W. 417. Massachusetts. Com. v. Chapman, 11 Cush. 422. Missouri. Willi v. Lucas, 110 Mo. 219, 19 S. W. 726, 33 Am. St. Rep. 436; State v. Payton, 90 Mo. 220, 2 S. W. 394; State v. Ross, 29 Mo. 32; State v. Phillips & Ross, 24 Mo. 475; State v. Ostman, 147 Mo. App. 422, 126 S. W. 961. Nebraska. Jahnke v. State, 68 Neb. 154, 94 N. W. 158, 104 N. W. 154; Dixon v. State, 46 Neb. 298, 64 N. W. 961. Nevada. State v. Squaires, 2 Nev. 226. Oklahoma. Drury v. Territory, 9 Okla. 398, 60 Pac. 101. South Carolina. State v. Fley, 2 Brev. 338, 4 Am. Dec. 583. Texas. Dodd v. State, 83 Tex. Cr. 160, 201 S. W. 1014. Wisconsin. Vogel v. State, 138 Wis. 315, 119 N. W. 190. Both at common law and under the Texas statute it is not necessary to al 45 As a rule a principal in the second degree or one who is present aiding and abetting may be indicted and convicted before trial of the principal in the first degree, and even though the principal in the first degree escapes or dies.46 According to some of the courts, the guilt of the principal in the first degree must be shown.47 But others hold that this is not necessary,48 and that a principal in the second degree or aider or abettor may be convicted even though the principal in the first degree has been acquitted.49 Whether principals lege the facts relied on to show the party to be a principal although the offense may not actually have been committed by him, if he is a principal by reason of the acts performed by him in the commission of the offense. Dillard v. State, 77 Tex. Cr. 1, 177 S. W. 99. Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. When two persons are jointly indicted, one as principal in the first degree and the other as principal in the second degree, the former may be convicted as principal in the second degree, and the latter as principal in the first degree. Benge v. Com., 92 Ky. 1, 17 S. W. 146. See also Albritton v. State, 32 Fla. 358, 13 So. 955; Travis v. Com., 96 Ky. 77, 27 S. W. 863. But to convict one as an aider and abettor only, the principal in the first degree must be indicted jointly with him, or else, if he is indicted alone, the indictment must disclose the name of the principal, and give a description of his acts. Mulligan v. Com., 84 Ky. 229, 1 S. W. 417. 45 Frost C. L. 350, 351; 1 Hale P. C. 437. See also the following decisions: United States. Rooney v. United States, 203 Fed. 928. Georgia. Bruce v. State, 99 Ga. 50, 25 S. E. 760; Williams v. State, 69 Ga. 11; Boyd v. State, 17 Ga. 194. Kentucky. Reed v. Com., 125 Ky. 126, 100 S. W. 856. North Carolina. State v. Jarrell, 141 N. C. 722, 53 S. E. 127, 8 Ann. Cas. 438. South Carolina. State v. Crank, 2 Bailey 66, 23 Am. Dec. 117; State v. Fley, 2 Brev. 338, 4 Am. Dec. 583. 46 State v. Fley, 2 Brev. (S. C.) 338, 4 Am. Dec. 583. And see State v. Phillips & Ross, 24 Mo. 475. 47 Ex parte Sullivan, 17 Cal. App. 278, 119 Pac. 526; Jones v. State, 64 Ga. 697; Mulligan v. Com., 84 Ky. 229, 1 S. W. 417. 48 Hunter v. State, 60 Ark. 312, 30 S. W. 42; Foster v. State, 45 Ark. 361; State v. Warady, 78 N. J. L. 687, 75 Atl. 977, aff'g 77 N. J. L. 348, 72 Atl. 37. It is to be noted that in all the above cases, however, the offenses involved were misdemeanors. See also Strong v. State, 88 Ark. 240, 114 S. W. 239, 22 L. R. A. (N. S.) 560. 49 United States. Rooney v. United States, 203 Fed. 928. California. People v. Newberry, 20 Cal. 439; People v. Bearss, 10 Cal. 68. Kansas. State v. Bogue, 52 Kan. 79, 34 Pac. 410. Kentucky. Steely v. Com., 132 Ky. 213, 116 S. W. 714; Reed v. Com., 125 Ky. 126, 100 S. W. 856. Missouri. State v. Ross, 29 Mo. 32; State v. Phillips & Ross, 24 Mo. 475. North Carolina. State v. Jarrell, 141 N. C. 722, 53 S. E. 127, 8 Ann. Cas. 438; State v. Whitt, 113 N. C. 716, 18 S. E. 715. But a husband cannot be convicted of rape upon his wife on the theory in the first and second degree may be convicted of different grades or degrees of an offense is considered in another section.50 § 252. Accessaries-Indictment. At common law an accessary before the fact is liable to the same punishment as the principal.51 But at common law, and except where the rule has been changed by statute, an indictment must charge a person correctly as principal or accessary, according to the facts. On an indictment charging one as principal there can be no conviction on evidence showing that he was merely an accessary, and vice versa.52 This rule has been changed by statute in many states, however. So a person charged as principal may be convicted on evidence showing him to be merely an accessary before the fact where the statute provides that an accessary before the fact may or must be indicted, tried and convicted. and punished as a principal,53 or that accessaries shall or must be that he aided another man to have intercourse with her, where the man he is charged to have aided has been acquitted. State v. Haines, 51 La. Ann. 731, 25 So. 372, 44 L. R. A. 837. 50 See § 257, infra. 51 4 Bl. Com. 39; Minich v. People, 8 Colo. 440, 9 Pac. 4; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122. 52 State v. Walters, 135 La. 1070, 66 So. 364; Silvas v. State, 71 Tex. Cr. 213, 159 S. W. 223; Kaufman v. State, 70 Tex. Cr. 438, 159 S. W. 58; Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989; O'Quinn v. State, 55 Tex. Cr. 18, 115 S. W. 39; Simms v. State, 10 Tex. App. 131; State v. Cremeans, 62 W. Va. 134, 57 S. E. 405; State v. Prater, 52 W. Va. 132, 43 S. E. 230; State v. Roberts, 50 W. Va. 422, 40 S. E. 484; Reg. v. Brown, 14 Cox C. C. 144; Rex v. Winifred, 1 Leach C. C. 515. And see Smith v. State, 37 Ark. 274; People v. Lyon, 99 N. Y. 210, N. E. 673; Norton v. People, 8 Cow. (N. Y.) 137; Reg. v. Tuckwell, Car. & M. 215. A verdict acquitting the defendant on a count charging him as principal and convicting him on a count charging him as accessary before the fact is not contradictory or repugnant. Connecticut. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465; State v. Hamlin, 47 Conn. 95, 117, 36 Am. Rep. 54. Indiana. Brunaugh v. State, 173 Ind. 483, 90 N. E. 1019; Rhodes v. State, 128 Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429; Wade v. State, 71 Ind. 535. Iowa. State v. McCray, -, 179 N. W. 627. Iowa Kansas. State v. Patterson, 52 Kan. 335, 34 Pac. 784; State v. Mosley, 31 Kan. 355, 2 Pac. 782; State v. Cassady, 12 Kan. 550. Michigan. People v. McKeighan, 205 Mich. 367, 171 N. W. 500; People v. Hoek, 169 Mich. 87, 134 N. W. 1031; People v. Wright, 90 Mich. 362, 51 N. W. 517. Minnesota. State v. Whitman, 103 Minn. 92, 114 N. W. 363, 14 Ann. Cas. 309. Missouri. State v. Sykes, 191 Mo. 62, 89 S. W. 851; State v. Edgen, 181 Mo. 582, 80 S. W. 942; State v. Valle, 164 prosecuted, tried and punished as principals, and that no other facts need be alleged in an indictment or information against an accessary than are required in an indictment or information against his principal.54 And the same is generally held to be true where the statute merely declares that an accessary before the fact shall be deemed a principal and punished as such,55 although there is authority Mo. 539, 65 S. W. 232; State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842. 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. Oregon. State v. Steeves, 29 Ore. 85, 43 Pac. 947. Pennsylvania. Campbell v. Com., 84 Pa. 187. Washington. State v. Malsogoff, 88 Wash. 419, 153 Pac. 379. But see State v. Gifford, 19 Wash. 464, 53 Pac. 709. But even under such a statute the accessary may be charged as an 'accessary rather than as a principal, if the statute is merely permissive. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465; State v. Hamlin, 47 Conn. 95, 117, 36 Am. Rep. 54; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655. The indictment may either allege the matter according to the fact, or charge both the principal and accessary as principals in the first degree. State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842. An accessary after the fact cannot be indicted or punished as a principal under such a provision. Wade V. State, 71 Ind. 535; Ross v. State, 1 Blackf. (Ind.) 390; State v. Umble, 115 Mo. 452, 22 S. W. 378. 54 People v. Nolan, 144 Cal. 75, 77 Pac. 774; People v. Rozelle, 78 Cal. 84, 20 Pac. 36; People v. Burke, 18 Cal. App. 72, 122 Pac. 435; State v. Cramer, 20 Idaho 639, 119 Pac. 30; State v. Geddes, 22 Mont. 68, 55 Pac. 919; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504. 55 United States. Kelly v. United States, 258 Fed. 392, certiorari denied, 249 U. S. 616, 63 L. Ed. 803, 39 Sup. Ct. 391; Vane v. United States, 254 Fed. 32; Davey v. United States, 208 Fed. 237, holding that the indictment need not expressly charge him as principal, but may charge him with aiding, abetting, etc. Florida. Buie v. State, 68 Fla. 320, 67 So. 102. Illinois. An accessary before the fact may be indicted and punished as principal, and the indictment must contain an allegation charging him as principal, though the pleader may, if he chooses, state the circumstances of the offense. People v. Van Bever, 248 Ill. 136, 93 N. E. 725; People v. Lucas, 244 Ill. 603, 91 N. E. 659; Burnett v. People, 204 Ill. 208, 68 N. E. 505, 66 L. R. A. 304, 98 Am. St. Rep. 206; Fixmer v. People, 153 Ill. 123, 38 N. E. 667; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320, petition for writ of error dismissed, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. 21. But one indicted as principal cannot be convicted as accessary after the fact. Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410. And see People v. Jordan, 244 Ill. 386, 91 N. E. 482. New York. People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915 A 501, aff'g 154 N. Y. App. Div. 44, 139 N. Y. Supp. 137; People v. Bliven, |