best evidence of the essential fact that the principal had been convicted.77 According to some courts a verdict finding the principal guilty,78 or his plea of guilty,79 is a sufficient conviction, and may be shown in evidence against the accessary although no judgment has been entered upon it and no sentence pronounced. Other courts, however, hold that a record of the conviction of the principal showing simply a verdict of guilty against him,80 or a plea of nolo contendere,81 without any judgment entered, is not enough. § 255. Statutory modifications. The principals of the common law stated in the preceding section 82 have been to some extent changed by statute both in England,88 and in many of our states. It is sometimes provided, for example, that an accessary may be tried and convicted either before or after the principal felon,84 or that he may be prosecuted although the principal offender has not been taken or tried,85 or whether the principal has or has not been convicted or is amenable to justice,86 or that he may be indicted, 77 Jones v. State, 108 Ark. 447, 158 S. W. 132; State v. Burbage, 51 S. C. 284, 28 S. E. 937. 78 Cantrell v. State, 141 Ga. 98, 80 S. E. 649. 79 Cantrell v. State, 141 Ga. 98, 80 S. E. 649; Groves v. State, 76 Ga. 808; Braxley v. State, 17 Ga. App. 196, 86 S. E. 425. See also Thornton v. State, 25 Ga. 301. It is sufficient if the principal's plea of guilty is entered in time to permit proof of his conviction to be submitted on the trial of the accessary. The fact that the plea is entered after the trial of the accessary has begun affords the latter no cause of complaint, especially where he does not object to the suspension of his trial in order that it may be received. Braxley v. State, 17 Ga. App. 196, 86 S. E. 425. 80 Daughtrey v. State, 46 Fla. 109, 35 So. 397, 110 Am. St. Rep. 84; Com. v. Minnich, 250 Pa. 363, 95 Atl. 565, L. R. A. 1916 B 950. Its admission is reversible error although judgment is subsequently entered on the verdict and is affirmed. Com. v. Vitale, 250 Pa. 548, 95 Atl. 723; State v. Duncan, 28 N. C. (6 Ired.) 98. 81 Buck v. Com., 107 Pa. 486. 82 See § 254, supra. 83 As to the English statutes, see Cantrell v. State, 141 Ga. 98, 80 S. E. 649; State v. York, 37 N. H. 175; State v. Duncan, 28 N. C. (6 Ired.) 98. 84 Murphy v. State, 184 Ind. 15, 110 N. E. 198; State v. York, 37 N. H. 175; Black v. State, 64 Tex. Cr. 116, 143 S. W. 932. Such a statute does not change the rule that he may be indicted and tried with the principal. State v. York, 37 N. H. 175. 85 Reed v. Com., 125 Ky. 126, 100 S. W. 856; Com. v. Hicks, 118 Ky. 637, 82 S. W. 265, 4 Ann. Cas. 1154; Begley v. Com., 26 Ky. L. Rep. 598, 82 S. W. 285; State v. Stephens, 170 N. C. 745, 87 S. E. 131. An accessary before the fact to suicide may be punished under such a provision. Com. v. Hicks, 118 Ky. 637, 82 S. W. 265, 4 Ann. Cas. 1154. 86 Illinois. Conley v. People, 170 Ill. 587, 48 N. E. 911. tried, convicted and punished, where the principal cannot be taken so as to be prosecuted and punished,87 or where the principal offender has escaped,88 or that he may be indicted, convicted and punished, either with the principal offender, or after his conviction, or may be prosecuted and convicted of substantive felony, whether the principal offender shall or shall not have been convicted or is or is not amenable to justice.89 It has also been held that an accessary may Mississippi. Osborne v. State, 99 Miss. 410, 55 So. 52. Montana. State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655. South Carolina. State v. Burbage, 51 S. C. 284, 28 S. E. 937. Virginia. Hatchett v. Com., 75 Va. 925. It is not necessary under such a statute to set out in the indictment the record of the conviction of the principal. State v. Burbage, 51 S. C. 284, 28 S. E. 937. 87 Cantrell v. State, 141 Ga. 98, 80 S. E. 649; Edwards v. State, 80 Ga. 127, 4 S. E. 268. 88 The Texas statute provides that an accessary after the fact, called an accessary, may be tried and punished before the principal where the latter has escaped, but that if the principal is arrested he shall be tried first, and, if acquitted, the accessary shall be discharged. Pen. Code, art. 90; Zweig v. State, 74 Tex. Cr. 306, 171 S. W. 747. Under this provision the escape of the principal is the only contingency which will authorize the prosecution and conviction of an accessary before the prosecution and conviction of the principal. The death of the principal before he is tried will prevent the trial and conviction of the accessary. State v. McDaniel, 41 Tex. 229; Moore v. State, 40 Tex. Cr. 389, 51 S. W. 1108. If the principal is under arrest, an accessary cannot be tried until the principal has been tried and convicted. Kingsbury v. State, 37 Tex. Cr. 259, 39 S. W. 365. The principal is not convicted within this rule where sentence has not been pronounced although judgment has been entered on a verdict of guilty. Kingsbury v. State, 37 Tex. Cr. 259, 39 S. W. 365. A reversal of a judgment against the principal will operate to discharge the accessary. Kingsbury v. State, 37 Tex. Cr. 259, 39 S. W. 365. 89 Maine. State v. Ricker, 29 Me. 84. Massachusetts. Pettes v. Com., 126 Mass. 242. North Carolina. State v. Jones, 101 N. C. 719, 8 S. E. 147; State v. Ludwick, 61 N. C. 401. Vermont. State v. Butler, 17 Vt. 145. Wisconsin. Karakutza v. State, 163 Wis. 293, 156 N. W. 965. In Florida, under such a statute, it is held that if the accessary is not indicted for a substantive felony, but in the common-law mode, the common-law rules as to trial and proof apply, and hence the conviction of the principal is essential to the conviction of the accessary, and if he is acquitted a prior conviction of the accessary cannot stand, Daughtrey v. State, 46 Fla. 109, 35 So. 397, 110 Am. St. Rep. 84; Bowen v. State, 25 Fla. 645, 6 So. 459. Ex parte Bowen, 25 Fla. 214, 6 So. 65; and that if an accessary before or after the fact is indicted after the principal's convic be convicted before the trial of the principal where the statute abolishes the distinction between principals and accessaries, and makes aiders and abettors principals,90 or permits the prosecution and punishment of an accessary as though he were a principal offender,91 or makes aiding, abetting or procuring a substantive offense.92 § 256. Acquittal of principal. At common law, and except where the rule has been changed by statute, if the principal is acquitted at his trial the accessary cannot be tried.93 Statutes in some states expressly provide that the acquittal of the principal shall not bar a prosecution against the accessary,94 and the same effect has been given to a statute providing that an accessary may be charged, tried and convicted in the same manner as though he were a principal.95 But a statute authorizing the indictment and conviction of an accessary before or after the principal is indicted or convicted,96 or providing that accessaries before the fact shall tion, the indictment must allege either his conviction or his guilt. Daughtrey v. State, 46 Fla. 109, 35 So. 397, 110 Am. St. Rep. 84. 90 Kaufman v. United States, 212 Fed. 613, Ann. Cas. 1916 C 466. And see Bliss v. United States, 105 Fed. 508. Under such a provision an accessary before the fact to suicide may be punished, provided the person committing suicide was sane. McMahan v. State, 168 Ala. 70, 53 So. 89. 91 State v. Wakefield, 88 Conn. 164, 90 Atl. 230; State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54. 92 State v. Bryson, 173 N. C. 803, 92 S. E. 698; Noland v. State, 19 Ohio 131; Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. 93 United States v. Crane, 4 McLean 317, Fed. Cas. No. 14,888; People v. Bearss, 10 Cal. 68; Ex parte Bowen, 25 Fla. 214, 6 So. 65; Edwards v. State, 80 Ga. 127, 4 S. E. 268; Simmons v. State, 4 Ga. 465; McCarty v. State, 44 Ind. 214, 15 Am. Rep. 232; State v. Jones, 101 N. C. 719, 8 S. E. 147; State v. Ludwick, 61 N. C. 401; Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. 94 Gibson v. State, 53 Tex. Cr. 349, 110 S. W. 41. 95 State v. Lee, 91 Iowa 499, 60 N. W. 119; State v. Patterson, 52 Kan. 335, 34 Pac. 784; State v. Bogue, 52 Kan. 79, 34 Pac. 410. See also Rooney v. United States, 203 Fed. 928, where, however, the aider and abettor was present when the offense was committed. 96 McCarty v. State, 44 Ind. 214, 15 Am. Rep. 232; State v. Jones, 101 N. C. 719, 8 S. E. 147; State v. Ludwick, 61 N. C. 401; Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. In Florida if the accessary is in-. dicted in the common law mode, and not for a substantive felony, and the principal is acquitted, a prior conviction of the accessary cannot stand. Daughtrey v. State, 46 Fla. 109, 35 So. 397, 110 Am. St. Rep. 84; Bowen v. State, 25 Fla. 645, 6 So. 459; Ex parte Bowen, 25 Fla. 214, 6 So. 65. be punished as principals are punished,97 does not change the common-law rule. § 257. Grade or degree of offense. At common law an accessary cannot be guilty of any other or higher grade of crime than that of which the principal is also guilty.98 And generally the guilt of the principal in the second degree, or of one who is present aiding and abetting, is measured by the intent of the one actually committing the offense. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as that of the actual doer.99 But it is now generally held that principals, accessaries, and aiders or abettors may be convicted of different grades or degrees of a crime, according to their respective intents. This has often been held to be true in homicide. cases, for example. So it has been held that an accessary, or prin 97 Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916 B 137. 98 4 Black. Com. 36. See also the following decisions: United States. United States v. Burr, 4 Cranch (8 U. S.) 469, 503, Fed. Cas. No. 14,693. Arkansas. Ray v. State, 102 Ark. 594, 145 S. W. 881. Colorado. Trozzo v. People, 51 Colo. 323, 117 Pac. 150. Florida. Thomas v. State, 73 Fla. 115, 74 So. 1. Missouri. Reynolds v. Publishers: George Knapp & Co., 155 Mo. App. 612, 135 S. W. 103. Tennessee. Nuthill v. State, 11 Humph. 247. Texas. Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989. So where the principal is convicted of murder in the first degree with "mitigating circumstances," which under the statute requires his sentence to be commuted to life imprisonment, and the accessary is convicted of murder in the first degree without any finding of mitigating circumstances, he too should be sentenced to life imprisonment. Nuthill v. State, 11 Humph. (Tenn.) 247. 99 Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. 1 If a principal in the second degree or an aider and abettor has a different intent from that of the actual perpetrator, he will be guilty according to the intent with which he may have performed his part of the act. Leslie v. State, 42 Tex. Cr. 65, 57 S. W. 659; Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965; Bibby v. State (Tex. Cr.), 65 S. W. 193. The guilt of an aider or abettor must be determined upon the facts showing the part he had in the commission of the crime, and does not depend upon the degree of the perpetrator's guilt. State v. Phillips, 118 Iowa 660, 92 N.. W. 876; State v. Pasnau, 118 Iowa 501, 92 N. W. 682; State v. Wolf, 112 Iowa 458, 84 N. W. 536; State v. Smith, 100 Iowa 1, 69 N. W. 269. 2 State v. Phillips, 118 Iowa 660, 92 N. W. 876; Red v. State, 39 Tex. Cr. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. Where two persons combine to assault another, and one of them intends to kill him, and the other has no such intent, and he is killed by cipal in the second degree, or an aider and abettor, in a homicide may be found guilty of murder in a higher or lower degree than the actual perpetrator of the crime, or may be convicted of murder though the perpetrator has been convicted of manslaughter, or of manslaughter though the perpetrator has been convicted of murder." And the same rule has been applied in prosecutions for assault with the former, they may be convicted of different degrees of homicide. Miller v. State, 139 Wis. 57, 119 N. W. 850. 3 State v. Gray, 55 Kan. 135, 39 Pac. 1050. An accessary, or one who is present aiding and abetting, may be tried for murder in the first degree although the principal has been convicted of murder in the second degree, where the statute provides that one who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. State v. Lee, 91 Iowa 499, 60 N. W. 119. In Tarasinski v. State, 146 Wis. 508, 131 N. W. 889, there is dictum to the effect that although a principal charged with murder in the first degree is permitted to plead guilty of murder in the third degree, one charged as accessary may be tried as accessary to murder in the first degree. 4 An accessary may be guilty of murder in the second degree although the evidence shows that the principal is guilty, if at all, of murder in the first degree. Hawley v. Com., 75 Va. 847. 5 One charged with murder as principal in the second degree may be tried for murder after the principal in the first degree has been convicted of voluntary manslaughter. Brown v. State, 28 Ga. 199; Bruce v. State, 99 Ga. 50, 25 S. E. 760. Where the statute provides that an aider and abettor may be prosecuted and punished as though he were a principal, and thus makes aiding and abetting a substantive offense, the fact that the principal has been convicted of manslaughter does not prevent the trial and conviction of an aider and abettor of murder in the second degree. Goins v. State, 46 Ohio St. 457, 21 N. E. 476. Where the statute abolishes the distinction between principals and accessaries, and provides that any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were principal, an accessary may be convicted of murder in the second degree although the principal has been convicted of manslaughter in the third degree. State v. Patterson, 52 Kan. 335, 34 Pac. 784. 6 One charged with being an accessary before the fact to murder in the first degree may be convicted of being accessary to manslaughter although the principal has been convicted of murder in the first degree. Thomas v. State, 73 Fla. 115, 74 So. 1. The principal may be convicted of murder in the second degree and the accessary of manslaughter, where the statute makes' those who would have been accessaries at common law principals. State v. Steeves, 29 Ore. 85, 43 Pac. 947. On a prosecution for murder, if the principal in the first degree assaulted the deceased with a deadly weapon, but his intention to assault him with a deadly weapon was unknown to the principal in the second degree, who . |