and plausible reasons, that in such cases the community of goods by a kind of tacit concession of society is revived. And some even of our own lawyers have held the same (h), though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians: at least it is now antiquated, the law of England admitting no such excuse at present (i). (623) And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero (k),, who holds that "suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum;" but also to the Jewish law, as certified by king Solomon himself (1): "if a thief steal to satisfy his soul when he is hungry, he shall restore seven-fold, and shall give all the substance of his house:" which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men's properties would be under a strange insecurity, if liable to be invaded according to the wants of others, of which wants no man can possibly be an adequate judge, but the party himself who pleads them. In this country, especially, there would be a peculiar impropriety in admitting so dubious an excuse: for by our laws such sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider that the crown on the representation of its ministers of justice, has a power to soften the law, and to extend mercy in cases of peculiar hardship. [*32] VII. Where per be incapable of committing a wrong. * VII. To these several cases, in which the incapacity of committing crime arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, son supposed to from the excellence and perfection of the person; which extend as well to the will as to the other qualities of the mind. I mean the case of the sovereign; who by virtue of his royal prerogative, is not under the coercive power of the law (m); which will not suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency to forbear any idle inquiries as to what would be the consequence if the sovereign were to act thus and thus; since the law deems so highly of his wisdom and virtue, as not even to presume it possible for him to do anything inconsistent with his station and dignity; and therefore has made no provision to remedy such grievance. But of this sufficient was said in a former volume (n), to which I must refer the reader. (h) Britton, c. 10; Mirr. c. 4, s. 16. (i) 1 Hale, P. C. 54. (k) De Off. 1. 3, c. 5. (1) Prov. vi. 30. (m) 1 Hale, P. C. 44. (623) But if we accept the doctrine that, under any circumstances, a man to save his own life may take another's life, surely to save his own life he may take the other's property. 1 Bish. Crim. Law, § 349. And see Barron v. Page, 5 Hayw. (Tenn.) 97. As to the necessity which will justify laboring on the Lord's day, see The State v. Goff, 20 Ark. 298. *CHAPTER III. PRINCIPALS AND ACCESSORIES. [*33] HAVING shown in the preceding chapter what persons are, or are not, capable of committing crimes, we will next make a few remarks on the different degrees of guilt among persons who are capable of offending; Principals and accessories. they may be principals or accessories. I. Principals. I. A man may, in the contemplation of our law, be a principal in an offence in either of two degrees. A principal in the first degree, is he who is the actor, or absolute perpetrator of the crime; and in the second degree he is, who is present, aiding and abetting the fact to be done (a). Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance (b). (624) So in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or persuading another to drink it (c) who is ignorant of its poisonous quality (d), or giving it to him for that purpose; and yet not administer it himself, (a) 1 Hale, P. C. 615. (b) Foster, 350. (c) Kel. 52. (624) One present while a felony is committed, if he takes no part in it, and does not act in concert with those who commit it, will not be a principal in the second degree, merely because he did not endeavor to prevent the felony or apprehend the felon. Plummer v. Com., 1 Bush (Ky.), 76; Connaughty v. State, 1 Wis. 169; People v. Ah Ping, 27 Cal. 489. Mere presence is not sufficient to constitute the party a principal, without he aids, assists or abets in some manner. Connaughty v. State, 1 Wis. 169. One who keeps guard outside of the house while his companions are in the house commiting the felony, is, in the construction of law, present aiding and abetting in the felony, sufficient to make him a principal in the second degree. Com. v. Knapp, 9 Pick. (Mass.) 496; State v. Hardin, 2 Dev. & Bat. (N. C.) 407; State v. Coleman, 5 Port. (Ala.) 32; Selvidge v. State, 30 Texas, 60; State v. Squaires, 2 Nev. 226; Breese v. State, 12 Ohio St. 146; Doan v. State, 26 Ind. 495. All who by their presence countenance a riot or an affray are criminally responsible. Williams v. The State, 9 Miss. 268; Hawkins v. The State, 13 Ga. 322. The distinction between principals in the first and second degree is only formal, and is said to be a distinction without a difference. State v. Davis, 29 Mo. 391; State v. Fley, 2 Brev. (S. C.) 338; State v. McGregor, 41 N. H. 407; King v. The State, 21 Ga. 220; Brown v. The State, 28 id. 199. An indictment against a man as principal of the first degree may be sustained by proof of his being principal of the second degree; and, on the contrary, an indictment against him as principal of the second degree is supported by proof that he is principal of the first degree. 1 Bish. Crim. Law, § 648. See Shaw v. The State, 18 Ala. 547; The State v. Cameron, 2 Chand. (Mich.) 172; State v. Anthony, 1 McCord (S. C.), 285. Occasionally the provisions of a statute require the distinction between the degrees to be observed. See Huffman v. Com., 6 Rand. (Va.) 685; Raswick's Case, 2 Va. Cas. 356. A party charged as principal in the second degree may be convicted, though the party charged as principal in the first degree is acquitted. Brown v. State, 28 Ga. 216; People v. Bearss, 10 Cal. 68; State v. Ross, 29 Mo. 32. And on an indictment for murder, the court, in its discretion, may try the principal in the second degree before the principal in the first degree. Boyd v. State, 17 Ga. 194. nor be present when the very deed of poisoning is committed (e). And [*34] * the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed; letting out a wild beast, with an intent to do mischief, or exciting a madman to commit murder, so that death thereupon ensues; in every of these cases the party offending is guilty of murder as a principal, in the first degree. For he cannot be called an accessory, that necessarily presupposing a principal; and the poison, the pitfall, the beast, and the madman, cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessory, and cannot be so as accessory, it follows that he must be guilty as principal, and if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist (ƒ). II. Accessories. II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. (625) In considering the nature of which degree of guilt, we will, first, examine what offences admit of accessories, and what not: secondly, who may be an accessory before the fact: thirdly, who may be an accessory after it: and, lastly, how accessories, considered merely as such, and distinct from principals, are to be treated. 1. What offences sories. 1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the admit of acces- same acts, which make a man accessory in felony, making him a principal in treason, upon account of the heinousness of the [*35] crime (g). * Besides, it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the very advice and abetment amount to principal treason. But this will not hold in the inferior species of treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor (h). In murder and other fel (e) 3 Inst. 148. "He who does an act by means of an innocent agent commits the act himself," per Jervis, C. J., Reg. v. Wilson, Dearsl. & B. 128. (f) 1 Hale, P. C. 617; 2 Hawk. P. C. 315. (625) A person who participates in the felony, but without being so near at the time of its commission as to constitute him a principal, is to be deemed an accessory. See Com. v. Knapp, 9 Pick. (Mass.) 496, 516; Green v. The State, 13 Mo. 382; Tate v. The State, 6 Blackf. (Ind.) 110; Brennan v..People, 15 Ill. 511. One indicted as principal cannot be convicted on proof showing him to be merely an accessory (Hughes v. The State, 12 Ala. 458; Hately v. State, 15 Ga. 346; State v. Wyckoff, 31 N. J. L. 65; People v. Kater, 23 How. 93); and a principal, even of the second degree, cannot be held under an indictment charging him as accessory. See id.; 1 Bish. Crim. Law, § 663. A man may, by separate acts, be both an accessory before and an accessory after the fact. See Norton v. People, 8 Cow. 137; The State v. Coppenburg, 2 Strobh. (S. C.) 273; Stoops v. Com., 7 Serg. & R. (Penn.) 491. onies there may be accessories: except only in those offences, which in judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact (i). So too in crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals (k). And by the stat. 24 & 25 Vict. c. 94, s. 8, whosoever shall "aid, abet, counsel, or procure" the commission of any misdemeanor, whether at common or by the statute law, shall be liable to be tried, indicted, and punished as a principal offender. The rule that there cannot be accessories in treason or in misdemeanors, the highest and lowest offences, is grounded upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors. Further, it is a maxim, that accessorius sequitur naturam sui principalis (1): and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his. (626) 2. As to the second point, who may be an accessory before the [* 36] fact; sir Matthew Hale (m) defines him to be one, who being absent at the time of the crime committed, doth yet procure, counsel, 2. Accessory before the fact. or command another to commit a crime. Herein absence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal. If A then advises B to kill another, and B does it in the absence of A, now B is principal, and A is accessory in the murder. (627) And this holds, even though the party killed be not in rerum naturá at the time of the advice given. As if A, the reputed father, advises B, the mother of a bastard child, unborn, to strangle it when born, and she does so; A is accessory to this murder (n). And it is also settled (0), that whoever procures a felony to be committed, though it be by the intervention (i) 1 Hale, P. C. 615. (k) Ibid. 613. () 3 Inst. 139. (m) 1 Hale, P. C. 615, 616. (626) Properly, there are no accessories except in felonies. In treason and in misdemeanors, the highest and lowest of offenses, all concerned are principals. Sanders v. State, 18 Ark. 198; State v. Cheek, 13 Ired. (N. C.) 114; State v. Bardon, 1 Dev. (N. C.) 518; Com. v. Macomber, 3 Mass. 254; Whitney v. Turner, 2 Ill. (1 Scam.) 253; Lowenstein v. People, 54 Barb. 299; Whitaker v. English, 1 Bay. (S. C.) 15; Chanet v. Parker, 1 Mill (S. C.) Const. 333; U. S. v. Hanway, 2 Wall, Jr., C. C. 139, 195; Williams v. State, 20 Miss. 58; U. S. v. Morrow, 4 Wash. C. C. 733. See U. S. v. Burr, 4 Cranch, 472, 501. (627) That an accessory should have originated the design of committing the offense is not material. If the principal previously formed the design, and the alleged accessory encouraged him to carry it out, he is guilty as accessory of the offense. Keithler v. State, 18 Miss. 192. So the procurement may be either by direct means, as by hire, counsel, or command; or, indirect, by evincing an express liking, approbation, or assent to another's felonious design. People v. Norton, 8 Cow. 137. It is no excuse for the party committing the offense that the command to do so proceeded from a superior to an inferior; as from a master to his servant, or from a parent to his child. See Curtis v. Knox, 2 Denio, 341; Hays v. State, 13 Mo. 246; Com. v. Drew 3 Cush. (Mass.) 279. And see ante, page 29, note 15. A party who procures a felony to be done by an insane or innocent medium, or a slave, is himself liable as a principal in the first degree. Com. v. Hill, 11 Mass. 36; Adams v. People, 1 N. Y. (1 Comst.) 173; Berry v. State, 10 Ga. 511. of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that naturally or necessarily ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A commands B to burn C's house, and in doing so the house of D is also burnt, B is guilty of arson as principal, and A is an accessory to the burning D's house (p). But if A commands B to burn C's house, and he, in so doing, commits a robbery; now A, though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature (q). Yet if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is stabbed or shot, and dies; the commander is still accessory to the murder, for the substance of the thing commanded was the death of * Titius, and the manner of its execution is a [*37] mere collateral circumstance (r). An accessory before the fact to any felony may now be indicted, tried, convicted, and punished in all respects as if he were a principal felon (s). (628) And whosoever shall counsel, procure, or command any other person to commit a felony, whether at common or by the statute law, "shall be guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact, to the same felony, if convicted as an accessory, may be punished " (†). 3. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon (u). Therefore, to make an accessory ex post facto, it is in the first place requisite that he know of the felony committed (v). (629) 3. Accessory after the fact. (p) Plowd. 475. (2) 1 Hale, P. C. 617. (r) 2 Hawk. P. C. 316. (8) 24 & 25 Vict. c. 94, s. 1. (t) Id. s. 2. The soliciting and inciting a man to commit a felony, where no felony is actually committed, constitutes a misdemeanor. Reg. v. Gregory, 1 L. R. C. C. 77. (u) 1 Hale, P. C. 618. (628) In the absence of some enabling statute an accessory cannot be indicted, tried, or convicted, before a conviction of the principal, unless by his consent. See Baron v. People, 1 Park. 246; State v. Pybass, 4 Humph. (Tenn.) 442; U. S. v. Crane, 4 McLean, 317; Com. v. Knapp, 10 Pick. (Mass.) 477; State v. Duncan, 6 Ired. (N. C.) 236. By the legislation of some of the States, proceedings may now be carried on against the accessory, irrespective of the case against the principal offender. Thus in California, People v. Bearss, 10 Cal. 68; Iowa, Bonsell v. U. S., 1 Greene, 111; Illinois, Baxter v. People, 3 Gilman, 368; Brennan v. People, 15 Ill. 511, 516; Maine, State v. Ricker, 29 Me. 84; Missouri, Loughridge v. State, 6 Mo. 594; Massachusetts, R. S., chap. 133, § 2; Nevada, State v. Jones, 7 Nev. 408; Ohio, Noland v. State, 19 Ohio, 131; Pennsylvania, Rev. Acts, 1860, bill 11, § 43; and perhaps in some of the other States the accessory before the fact is either actually or substantially a principal. See 1 Bish. Crim. Law, § 670. The general rule is that in cases where, by statute, the offense of an accessory is made substantive and independent, then the accessory can be tried independently of the principal. Brown v. State, 13 Ohio St. 496. See United States v. Mills, 7 Pet. 138; United States v. Crane, 4 McLean, 317. (629) To constitute an accessory after the fact the aid and assistance must be given after the felony is fully completed (Harrel v. State, 39 Miss. 702); and the defendant must know that the felon is guilty. See 1 Whart. Crim. Law, § 147. |