intent to kill or murder, or with intent to commit rape. And in a jurisdiction where the receiver of stolen goods is regarded as an accessary after the fact to the theft, it has been held that he may be convicted as an accessary after the fact to a felony where the evidence shows that the offense was of that grade, though the principal has been convicted of misdemeanor theft only.10

VI. ACTS FOR WHICH A PERSON IS CRIMINALLY RESPONSIBLE

§ 258. In general. To render a person responsible for a crime, the criminal act must be either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by someone acting in concert with him or in furtherance of a common object or purpose.11 So no man can be properly convicted

supposed that his object was to assault and beat the deceased only, and who intended to participate in the assault and battery only, and participated in no design to kill, he is guilty of manslaughter only, while the principal in the first degree is guilty of murder. Brown v. State, 28 Ga. 199.

7 The person who fires a shot at another may have done so with such premeditation and malice as to make him guilty of an assault with intent to commit murder while the one abetting or counseling the shooting may have done so in the heat of passion, without premeditation or malice, and so have been guilty of assault with intent to commit manslaughter only. State v. Smith, 100 Iowa 1, 69 N. W. 269.

8 State v. Wolf, 112 Iowa 458, 84 N. W. 536.

9 See § 248, supra.

10 Morris v. State, 84 Ga. 7, 10 S. E. 368; Snow v. State, 5 Ga. App. 608, 63 S. E. 651.

11 People v. Holtz, 294 Ill. 143, 128 N. E. 341; People v. Garippo, 292 Ill. 293, 127 N. E. 75; Butler v. People, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423; Com. v. Moore, 121 Ky. 97, 88 S. W. 1085, 2

L. R. A. (N. S.) 719, 123 Am. St.
Rep. 189, 11 Ann. Cas. 1024; Com. v.
Campbell, 7 Allen (89 Mass.) 541, 83
Am. Dec. 705.

Where several are engaged in the execution of a common design to hold up a person, and one of them is killed by a shot fired by a person unknown, the others cannot be convicted for the homicide. People v. Garippo, 292 Ill. 293, 127 N. E. 75.

Persons who attend one on a lawful expedition, during which he alone commits a crime are liable therefor only on proof of a conspiracy, or of their intention to aid him in any unlawful act he might do. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392.

Where several officers are co-operating to stop an automobile in order to arrest the occupants, and in so doing unlawfully shoot at it for the purpose of puncturing a tire, and one of them kills an occupant of the car under such circumstances as to make him guilty of murder in the second degree, the others are not responsible for the result of his acts or guilty of murder, there being no proof of a conspiracy. Wiley v. State, 19 Ariz. 346, 170 Pac. 869, L. R. A. 1918 D 373.

Where defendant knocked another

of a crime as principal in the second degree or accessary before the fact or aider and abettor, if he never expressly or impliedly consented to the commission of the crime,12 and if two or more persons conceive the intention at the same time to do the same act, each is responsible for his own acts pursuant to such intention, but neither is an aider or abettor of the other where there is no conspiracy or agreement between them.13 And if an injury is caused by the act of one of several persons, not acting in concert, and it cannot be shown which one of them did the act, neither can be convicted, though it is clear that one of them is guilty.14

§ 259. Combination, conspiracy or joint enterprise. If several combine or conspire to commit an offense, or with a common intent jointly engage in the same undertaking, each of them is criminally responsible for the acts of the others in furtherance of the common object. In contemplation of law the act of each is the act of all.15

man down and he was kicked to death by a third person, acting independently, it was held that defendant was not responsible, where he did not induce or anticipate such third person's act. People v. Elder, 100 Mich. 515, 59 N. W. 237.

The responsibility of a person for the acts of his agent or servant (see § 265, infra), and of a husband for the acts of his wife and vice versa (see § 273, infra), is considered in other sections.

12 White v. People, 139 Ill. 143, 28 N. E. 1083; Lamb v. People, 96 Ill.

73; State v. Maloy, 44 Iowa 104; Leslie v. State, 42 Tex. Cr. 65, 57 S. W. 659; Rex v. Plummer, J. Kelyng 109.

13 See § 235, supra.

14 Rex v. Richardson, 1 Leach C. C. 387; People v. Woody, 45 Cal. 289; People v. Olsen, 6 Utah 284, 22 Pac. 163.

15 Alabama. Martin v. People, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91. California. People v. Moran, 18 Cal. App. 209, 122 Pac. 969.

Georgia. Wilkerson v. State, 73 Ga.

799; Taylor v. State, 25 Ga. App. 500, 103 S. E. 740; Pope v. State, 13 Ga. App. 711, 79 S. E. 909.

Illinois. People v. Anderson, 239 Ill. 168, 87 N. E. 917.

Indiana. Eacock v. State, 169 Ind. 488, 82 N. E. 1039.

Iowa. State v. Wolf, 112 Iowa 458, 84 N. W. 536; State v. Myers, 19 Iowa 517.

Kentucky. Gibson v. Com., 189 Ky. 89, 224 S. W. 657; Morgan v. Com., 188 Ky. 458, 222 S. W. 940; Gambrell v. Com., 130 Ky. 513, 113 S. W. 476; Reed v. Com., 125 Ky. 126, 100 S. W. 856; Shotwell v. Com., 23 Ky. L. Rep. 1649, 65 S. W. 820.

New York. Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342.

North Carolina. State v. Powell, 168 N. C. 134, 83 S. E. 310. Pennsylvania. Com. v. Brown, 58

Pa. Super. Ct. 300.
South Carolina. State v. Newman,
80 S. E. 482.

South Dakota. State v. Cline, 27 S.
D. 573, 132 N. W. 160.

Tennessee. Gardner v. State, 121 Tenn. 684, 120 S. W. 816.

16

This liability extends to each member of the combination, regardless of whether he took any part in the actual perpetration of the offense,1 and even though he was not present when it was perpetrated,17 and it continues until the object for which the conspiracy or combination was entered into is fully accomplished,18 but no longer.19 And the liability also extends to acts not intended or contemplated by the parties as a part of the original design but which are a natural or probable consequence of the unlawful combination or undertaking.20

§ 260. Acts not originally contemplated-In general. Although, ordinarily, no one can be punished as an aider or abettor, or as an accessary before the fact, for a crime, to the commission of which he has never expressly or impliedly given his consent,21 it is not always necessary, to render him responsible, that he shall have contemplated or expressly assented to the commission of the particular crime. The general rule is that, if several persons combine or conspire to commit a crime, or if persons command or counsel a crime,

Texas. Miller v. State, 15 Tex. App. 125.

Where two conspire to kill any officer who may attempt to arrest one of them, and one of them does so, both are guilty of murder in the first degree. State v. Connor, 179 N. C. 752, 103 S. E. 79.

Where two or more conspire to commit larceny, one of the conspirators who is present and assists in jostling the victim is guilty of larceny though another of them actually took the money from him. Waldon v. State, 182 Ind. 112, 104 N. E. 300.

See also § 482, infra.

16 Sankey v. State, 128 Ala. 51, 29 So. 578; State v. Porter,

Mo.

See also § 229 et seq., supra.. 18 Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334.

So where a conspiracy or combination embraces not merely a series of unlawful acts, but also extends to a division of the fruits and profits of such acts among the conspirators, the liability continues after the commission of the unlawful acts, and until such division is made. Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

19 Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

20 See § 260, infra.

21 See § 258, supra.

or aid and abet in an attempt to commit a crime, or if several engage in an unlawful enterprise, each is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts were not intended or contemplated by the parties as a part of the original design.22 Nor are persons

who conspire to commit an offense, or who counsel or command its commission, relieved from responsibility because the means used to commit it are different from those counseled, commanded or agreed upon.23 And if the means are not specifically agreed upon, each is responsible for the means actually used.24 And it is sometimes provided by statute that to render one guilty as an accessary it is not necessary that the offense committed be precisely that which was advised or encouraged, but that it is sufficient if it is of the same nature, though different in degree.25

§ 261. Illustrations. If several combine or conspire to do an unlawful act, and death happens in the prosecution of the common object, and as its natural and probable consequence, they are all alike guilty of the homicide, although the plan did not involve the taking of life.26 For example, if several persons combine to commit

23 It is not necessary that the offense shall have been committed in

1 the particular way instigated, if any. Maxey v. United States, 30 App. Cas. (D. C.) 63.

So, the fact that a homicide is committed by different means from those counseled or commanded does not prevent the person counseling or commanding from being an accessary. 1 Hale P. C. 617; Griffith v. State, 90 Ala. 583, 8 So. 812; Saunder's Case, 2 Plowd. 473n.

Compare Reg. v. Caton, 12 Cox C. C. 624.

Nor are persons who conspire to assault another with dangerous weapons relieved from liability for the killing of the person assaulted by one of their number with a weapon different from those originally contemplated. Patten v. United States, 42 App. Cas. (D. C.) 239.

24 People v. Ford, 25 Cal. App. 388,

143 Pac. 1075; 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 La Ed. 80, 8 Sup. Ct. 21, 22; State v. McCahill, 72 Iowa 111, 30 N. W. 553, 33 N. W. 599.

25 Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989.

26 United States. Boyd v. United States, 142 U. S. 450, 35 L. Ed. 1077, 12 Sup. Ct. 292.

Alabama. Martin v. State, 136 Ala. 32, 34 So. 205; Evans v. State, 109 Ala. 11, 19 So. 535; Pierson v. State, 99 Ala. 148, 13 So. 550; Tanner v. State, 92 Ala. 1, 9 So. 613; Pearce v. State, 4 Ala. App. 32, 58 So. 996.

Illinois. Brennan v. People, 15 Ill.

511.

Missouri. State v. Darling, 216 Mo. 450, 115 S. W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526.

New York. People v. Guisto, 206 N. Y. 67, 99 N. E. 190.

North Carolina. State v. Powell, 168 N. C. 134, 83 S. E. 310.

Ohio. State v. Doty, 94 Ohio St. 258, 113 N. E. 811.

Where several colored men arm