[§ 24] (e) Conspiracy to Murder. On a prosecution for conspiracy to murder it may be shown that defendant was so drunk at the time the alleged conspiracy was entered into that he did not know what he was doing.27 The duced him to drink,3 31 nor is intoxication involuntary because defendant, by reason of his previous habits, had such an appetite for drink as amounted to a disease overcoming his will and impelling him to drink. 32 [§ 26] (3) Insanity Resulting from Intoxication; Delirium Tremens.33 Delirium tremens or permanent mental disease amounting to insanity produced by prior intoxication is treated like other insanity, and is an absolute defense in a prosecution for homicide when insanity due to any other cause and of the same degree would be a defense.3* But temporary insanity, that is to say, the mental excitement or frenzy directly caused by voluntary excessive indulgence in intoxicating liquors, does not exempt one from responsibility for a homicide.35 To be an absolute defense the intoxication must have [25] (2) Involuntary Intoxication.28 rule that drunkenness does not exempt one from criminal responsibility for a homicide does not apply to involuntary intoxication.29 Intoxication, however, although involuntary, in order to exempt one from criminal responsibility for a homicide, must be such as to render him incapable of controlling himself.30 Intoxication is not involuntary within this rule, because of the fact that deceased furnished defendant with intoxicating liquor or in26. State v. Pasnau, 118 Iowa 501. | S 513, 8 ALR 1034; Cochran v. State, 92 NW 682; Rex v. Cruse, 8 C. & P. 65 Fla. 91, 61 S 187; Garner v. State, 541. 34 ECL 881. 28 Fla. 113, 9 S 835, 29 AmSR 232. Ga.-Beck V. State, 76 Ga. 452. Ida.-State v. Rigley, 7 Ida. 292, 62 P 679. 27. Booher v. State, 156 Ind. 435, 60 NE 156, 54 LRA 391; State v. Pasnau, 118 Iowa 501, 92 NW 682. 28. Involuntary intoxication as a defense generally see Criminal Law § 85. 29. State v. Hundley, 46 Mo. 414; Peo. v. Robinson, 2 Park. Cr. (N. Y.) 235; Carter v. State, 12 Tex. 500, 62 AmD 539; Rex v. Pearson, 2 Lew. C. C. 144. But see Perryman State, 12 Okl. Cr. 500, 159 P 937 (where it was said that involuntary intoxication does not excuse the commission of a crime, but may be considered in a prosecution for murder only for the purpose of enabling the jury to determine whether accused, at the time of the homicide, was capable of forming and entertaining a premeditated design to effect death). 30. Com. v. Gilbert, 165 Mass. 45, 42 NE 336; Choate v. State, (Okl. Cr.) 197 P 1060. [a] Knowledge of right and wrong.-If the mental condition of a defendant charged with murder was the result of involuntary intoxication brought about by the design, fraud, or deception of others, and he was still able to discern right from wrong and adhere to the right and avoid the wrong, defendant would be guilty. Choate v. State, (Okl. Cr.) 197 P 1060. 31. Crawford v. State, 3 Ala. A. 1, 57 S 393; State v. Sopher, 70 Iowa 494, 30 NW 917; Chambers v. State, (Okl. Cr.) 182 P 714; Perryman v. State, 12 Okl. Cr. 500, 159 P 937; Com. v. Dudash, 204 Pa. 124, 53 A 756. 32. Choice v. State, 31 Ga. 424; State v. Haab, 105 La. 230, 29 S 725; Flanigan Peo., 86 N. Y. 554, 40 AmR 556; State v. Potts, 100 N. C. 457, 6 SE 657. V. Dipsomania generally see supra § 20 text and note 99. 33. Insanity resulting from intoxication generally see Criminal Law & 86. 34. U. S.-U. S. v. Drew, 25 F. Cas. No. 14,993, 5 Mason 28; U. S. v. McGlue, 26 F. Cas. No. 15,679, 1 Curt. 13; U. S. v. Woodward, 28 F. Cas. No. 16,760a, 2 Hayw. & H. 119. Ala.-Parrish v. State, 139 Ala. 16, 36 S 1012; Beasley v. State, 50 Ala. 149, 20 AmR 292. Ariz.-Territory v. Davis, 2 Ariz. 59, 10 P 359. Cal.-Peo. Methever, 132 Cal. 326, 64 P 481; Peo. v. Fellows, 122 Cal. 233, 54 P 830; Peo. v. Travers, 88 Cal. 233, 26 P 88; Peo. v. Ferris, 55 Cal. 588. V. Conn.-State v. Johnson, 41 Conn. 584. Del.-State v. Davis, 14 Del. 407, 33 A 55; State v. Harrigan, 14 Del. 369, 31 A 1052; State v. Dillahunt, 3 Del. 551; State v. Thomas, Houst. Cr. 511; State V. Hurley, Houst. Cr. 28. Fla. Hall v. State, 78 Fla. 420, 83 Ill-Upstone v. Peo., 109 Ill. 169. Ind. Aszman V. State, 123 Ind. 347, 24 NE 123, 8 LRA 33; Wagner v. State, 116 Ind. 181, 18 NE 833; Goodwin v. State, 96 Ind. 550; Gilooley v. State, 58 Ind. 182; Cluck v. State, 40 Ind. 263; Bradley v. State, 31 Ind. 492. Ky.-Peo. v. Ferris, 2 KyL 190. Mass.-Com. v. Parsons, 195 Mass. 560, 81 NE 291. Miss.-Kelly v. State, 11 Miss. 518. Mo.-State v. Riley, 100 Mio. 493, 13 SW 1063. Nev.-State v. Thompson, 12 Nev. Tex.-Carter v. State, 12 Tex. 500, 62 AmD 539; Lawrence v. State, 65 Tex. Cr. 93, 143 SW 636; Phillips v. State, 50 Tex. Cr. 481, 98 SW 868; Evers v. State, 31 Tex. Cr. 318, 20 SW 744, 37 AmSR 811, 18 LRA 421; Kelley v. State, 31 Tex. Cr. 216, 20 SW 357; Erwin v. State, 10 Tex. A. 700. W. Va.-State v. Kidwell, 62 W. Va, 466, 469, 59 SE 494, 13 LRANS 1024; State v. Robinson, 20 W. Va. 713, 43 AmR 799. Wis.-French v. State, 93 Wis. 325, 67 NW 706; Terrill v. State, 74 Wis. 278, 42 SW 243 (temporary insanity primarily due to an injury received in childhood, but aroused at the time of the crime by recent voluntary intoxication, was an absolute defense). Eng. Reg. v. Davis, 14 Cox C. C. 563. "Settled insanity produced by a long-continued intoxication affects responsibility in the same way as insanity produced by any other cause." Peo. v. Travers, 88 Cal. 233, 239, 26 P 88. "It seems to be well established that insanity will excuse crime, though superinduced by habitual drunkenness and only temporary in the sense that it is curable or will naturally pass off." State v. Kidwell, supra. "Long continued habits of intemperance producing permanent mental disease amounting to insanity, or as the instruction says so weakened and impaired the mind that one committing an offense has not mind enough at the time to know right from wrong, relieves the party, we apprehend, of responsibility under the law. Insanity of this sort, and thus produced, is the same in law as insanity arising from other causes." State v. Riley, 100 Mo. 493, 499, 13 SW 1063. [a] A statutory provision that neither intoxication nor temporary insanity produced by the voluntary recent use of intoxicating liquors shall excuse the commission of crime does not affect the defense of delirium tremens or settled insanity resulting indirectly from the prior use of intoxicating liquor, and such insanity if of sufficient degree is as before an absolute defense. Evers v. State. 31 Tex. Cr. 318, 20 SW 744. 37 AmSR 811, 18 LRA 421; Kelley v. State, 31 Tex. Cr. 216, 20 SW 357. To same effect Beck v. State, 76 Ga. 452. Dipsomania as excuse for homicide see supra § 20 text and note 99. Insanity as defense in homicide cases generally see supra §§ 9-19. 35. U. S. Myres v. U. S., 256 Fed. 779, 168 CCA 125; U. S. V. Clarke, 25 F. Cas. No. 14,811. 2 Cranch C. C. 158; U. S. v. Drew, 25 F. Cas. No. 14,993, 5 Mason 28. Ala.-James v. State, 193 Ala. 55, 69 S 569, AnnCas1918B 119; State v. Bullock, 13 Ala. 413. Cal-Peo. V. Methever, 132 Cal. 326, 64 P 481; Peo. v. Fellows, 122 Cal. 233, 54 P 830; Peo. v. Travers, 88 Cal. 233, 26 P 88. Del.-State v. Davis, 14 Del. 407, 33 A 55; State v. Thomas, Houst. Cr. 511. Ga.-Beck V. State, 76 Ga. 452; Mercer v. State, 17 Ga. 146. Ida. State v. Rigley, 7 Ida. 292, 62 P 679. Ill-Upstone v. Peo., 109 III. 169; Rafferty v. Peo., 66 Ill. 118. Ind. Wagner v. State, 116 Ind. 181, 18 NE 833. Kan.-State v. Rumble, 81 Kan. 16, 105 P 1, 25 LRANS 376. Ky.-Tyra V. Com.. 2 Metc. 1; Wright v. Com., 72 SW 340, 24 KyL 1838; Peo. v. Ferris, 2 KyL 190. Mich.-Roberts V. Peo.. 19 Mich. 401; Peo. v. Garbutt, 17 Mich. 9, 97 AmD 162. Mo.-State v. Hundley, 46 Mo. 414. Nebr.-Schlencker v. State, 9 Nebr. 241, 1 NW 857. Nev.-State v. Thompson, 12 Nev. 140. N. Y.-Flanigan v. Peo., 86 N. Y. 554, 40 AmR 556; Lanergan v. Peo., 50 Barb. 266. Okl.-Collier v. State, (Cr.) 186 P 963; Tubby v. State, 15 Okl. Cr. 496, 178 P 491; Perryman v. State, 12 Okl. Cr. 500, 159 P 937; Cheadle v. State, 11 Okl. Cr. 566, 149 P 919, LRA1915E 1031. S. C.-State v. Stark, 32 S. C. L. 479. 36 produced a fixed mental disease of some duration or permanence. The mental disease must be the remote effect of intoxication, not the direct effect.37 It must last after the immediate effects of the intoxication have passed away.3 38 But if such insanity actually existed it is immaterial that defendant was or was not drunk at the time of the commission of the homicide.39 One who was insane at the time of the commission of a homicide as a result of the combined effect of voluntary intoxication and of some other cause intervening after he had become intoxicated is not criminally responsible.* 40 Insanity resulting from intoxication, in order to free one from responsibility for a homicide, must be of such degree as would render one irresponsible if the insanity was due to any other cause." 41 46 [28] (5) Aggravation and Mitigation. The fact that one committing a homicide was voluntarily intoxicated at the time of its commission does not aggravate the offense.17 There are expressions Tenn.-Cornwell V. State, Mart. & Y. 147; Bennett v. State, Mart. & Y. 133. Tex. Carter v. State, 12 Tex. 500, 62 AmD 539; Lawrence v. State, 65 Tex. Cr. 93, 143 SW 636; Evers v. State, 31 Tex. Cr. 318, 20 SW 744, 37 AmSR 811, 18 LRA 421. Va.-Longley v. Com., 99 Va. 807, 37 SE 339. W. Va.-State v. Kidwell, 62 W. Va. 466, 59 SE 494, 13 LRANS 1024; State v. Robinson, 20 W. Va. 713, 43 AmR 799. Wyo. Gustavenson V. State, 10 Wyo. 300, 68 P 1006. Eng.-Reg. v. Davis, 14 Cox C. C. 563. "Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness does not destroy responsibility for crime, where the defendant, when sane and responsible, voluntarily makes himself drunk. To constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition.' Cheadle v. State, 11 Okl. Cr. 566, 571, 149 P 919, LRA1915E 1031. Insanity as defense in homicide cases generally see supra §§ 9-19. 36. U. S.-Myres v. U. S., 256 Fed. 779, 168 CCA 125. Ala.-Gunter v. State, 83 Ala. 96, 3 S 600. Fla. Hall v. State, 78 Fla. 420, 83 S 513, 8 ALR 1034. Ill-Rafferty v. Peo., 66 Ill. 118. Ind. Cluck v. State, 40 Ind. 263. N. Y.-Lanergan v. Peo., 50 Barb. 266, 34 How Pr 390 [rev 39 N. Y. 39, 6 Park. Cr. 209]. Okl.-Collier v. State, (Cr.) 186 P 963; Tubby v. State, 15 Okl. Cr. 496, 178 P 491; Perryman v. State, 12 Okl. Cr. 500, 159 P 937; Cheadle v. State, 11 Okl. Cr. 566, 149 Р 919, LRA1915E 1031. Va.-Boswell V. Com., 20 Gratt. (61 Va.) 860. in some of the earlier cases indicating that the rule at common law was formerly otherwise.48 Nor does the fact of intoxication, in the absence of statutory provision, mitigate the punishment.49 It is sometimes provided, however, by statute, that temporary insanity produced by the recent use of ardent spirits may be considered in mitigation of the punishment.5 In jurisdictions where it belongs to the jury to fix the punishment for murder the drunkenness of the perpetrator at the time of the commission of the homicide may be shown, as tending to give character to his conduct, as part of the res gestæ,51 50 [29] d. Narcosis and Hypnosis. Irresponsibility by reason of being under the influence of hypnotism,52 and irresponsibility by reason of the use of morphine or other drugs, 53 have been elsewhere treated. [§ 30] 2. Principals and Accessaries 54. -a. In General. As in other felonies at common law,55 participants in the commission of a homicide are divided into the following classes: (1) Principals in the first degree. (2) Principals in the second degree. (3) Accessaries before the fact. (4) Accessaries after the fact.5 In many states the common-law distinction between principals and accessaries before the fact has been abolished by statute,57 and all who participate in the commission of a homicide are indicted, tried, and punished as principals. 58 One acting as an accessary before the Va. 466, 59 SE 494, 13 LRANS 1024. 37. U. S. v. Clarke, 25 F. Cas. No. 14,811, 2 Cranch C. C. 158; Ward v. State, 19 Tex. A. 664. 38. Beasley v. State, 50 Ala. 149. 20 AmR 292; State v. Hundley, 46 Mo. 414. 39. 56 47. McIntyre v. Peo., 38 Ill. 514; Haile v. State, 11 Humphr. (Tenn.) 154; Ferrell v. State, 43 Tex. 503; State v. Cross, 42 W. Va. 253, 24 SE 996. [a] Thus, where defendant, while intoxicated, had been carelessly flourTerr. v. Davis, 2 Ariz. 59, 10 Pishing a revolver and afterward, in 359; Collier v. State, (Okl. Cr.) 186 P attempting to replace it in his 963; Cheadle V. State. 11 Okl. Cr. pocket, accidentally dicharged it, it 566, 149 P 919, LRA1915E 1031; Ward was held that the fact that he was v. State, 19 Tex. A. 664; State v. Kid- intoxicated did not raise the grade of well, 62 W. Va. 466, 59 SE 494, 13 the homicide from manslaughter_to LRANS 1024. murder. State v. Cross, 42 W. Va. 253, 24 SE 996. Drinking by insane person see infra § 27. 40. Leggett v. State, 21 Tex. A. 382, 17 SW 159. 41. U. S.-U. S. v. Clarke, 25 F. Cas. No. 14,811, 2 Cranch C. C. 158. Kan.-State v. O'Neil, 51 Kan. 651, 33 P 287, 24 LRA 555. N. Y.-O'Brien v. Peo., 48 Barb. 274. N. C.-State v. Wilson, 104 N. C. 868, 10 SE 315. Okl.-Tubby v. State, 15 Okl. Cr. S. C.-State v. Stark, 32 S. C. L. 479, 507. Tenn.-Stuart v. State, 1 Baxt. 178. Tex.-Ward v. State, 19 Tex. A. 664; Erwin v. State, 10 Tex. A. 700. Va.-Hite v. Com., 96 Va. 489, 31 SE 895. Eng.-Reg. v. Davis, 14 Cox C. C. 563. [a] If the memory only is affected there can be no delirium tremens sufficient to exempt one from respon| sibility. State v. Stark, 32 S. C. L. 479. Degree of insanity required to excuse homicide see supra §§ 11-15. 42. Drinking by insane person generally see Criminal Law § 87. 43. See supra §§ 9-19. 44. Fla. Cochran v. State, 65 Fla. 91, 61 S 187. Ga.-Choice v. State, 31 Ga. 424. La.-State v. Kraemer, 49 La. Ann. 766, 22 S 254, 62 AmSR 664. N. Y.-Peo. v. Pearce, 2 Edm. Sel. Cas. 76. Pa. Conn. v. Baker, 11 Phila. 631. 45. State v. Kraemer, 49 La. Ann. 766, 22 S 254, 62 AmSR 664. 46. Intoxication as aggravation or mitigation generally see Criminal W. Va.-State v. Kidwell, 62 W. Law § 82. 48. Aszman v. State, 123 Ind. 347, 24 NE 123, 8 LRA 33; Shannahan v. Com., 8 Bush (Ky.) 463, 8 AmR 465; State v. Cross, 27 Mo. 332; Peo. v. Eastwood, 14 N. Y. 562; Peo. v. Fuller, 2 Park. Cr. (N. Y.) 16. 49. Peo. v. Miller, 114 Cal. 10, 45 P 986; State v. Hogan, 117 La. 863, 42.S 352. 50. See statutory provisions; and Harris v. State, 74 Tex. Cr. 652, 169 SW 657; Lawrence v. State, 65 Tex. Cr. 93, 143 SW 636; Lyles v. State, 64 Tex. Cr. 621, 142 SW 592. 51. 52. 53. 54. Rafferty v. Peo., 66 Ill. 118. See Criminal Law § 89. See Criminal Law § 88. Agreement to commit suicide see Suicide [37 Cyc 521]. Parties to offenses generally see Criminal Law § 99 et seq. 55. See Criminal Law § 100. 56. See cases infra §§ 31, 32, 36, 50. 57. See Criminal Law § 103. 58. Ala.-Whitehead v. State, 90 S 351; Saulsberry v. State, 178 Ala. 16, 59 S 476; McMahan v. State, 168 Ala. 70, 53 S 89; Rigsby v. State, 152 Ala. 9, 44 S 608; Ferguson v. State, 149 Ala. 21, 43 S 16; Morris v. State, 146 Ala. 66, 41 S 274; Ferguson v. State, 141 Ala. 20, 37 S 448; Ferguson v. State, 134 Ala. 63 32 S 760, 92 AmSR 17; State v. Tally, 102 Ala. 25, 15 S 722; Williams v. State, 81 Ala. 1, 1 S 179, 60 AmR 133; Smith v. State, 8 Ala. A. 187, 62 S 575. Ark.-Henry v. State, 237 SW 454; Freel v. State, 21 Ark. 212. Cal-Peo. v. Morine, 138 Cal. 626, 72 P 166; Peo. v. Keefer, 65 Cal. 232, 3 P 818; Peo. v. Majors, 65 Cal. 138, 3 P 597, 52 AmR 295; Peo. v. Newberry, 20 Cal. 439; Peo. v. Bearss, 10 Cal. 68. Del.-State v. Prettyman, 29 Del. 452, 100 A 476; State v. Brown, 25 Del. 405, 80 A 146; State v. Adams, 22 Del. 178, 65 A 510; State V. Brinte, 20 Del. 551. 58 A 258. Ill.-Fixmer v. Peo., 153 Ill. 123. 38 NE 667; Usselton V. Peo., 149 Ill. 612, 36 NE 952; Spies v. Peo.. 122 I. 1. 12 NE 865, 17 NE 898, 3 AmSR 320; Ritzman v. Peo., 110 Ill. 362; Coates v. Peo., 72 Ill. 303; Baxter v. Peo., 8 111. 368. Ind. Sage v. State. 127 Ind. 15, 26 NE 667; Goff v. Prime, 26 Ind. 196. Iowa.-State v. Smith, 106 Iowa 701, 77 NW 499; State v. Lee, 91 -Iowa 499, 60 NW 119; State V. Munchrath, 78 Iowa 268, 43 NW 211. Kan.-State v. Bogue. 52 Kan. 79, 34 P 410; State v. Mosley, 31 Kan. 355, 2 P 782. Ky. Com. v. Lawson, 165 Ky. 4, 176 SW 359; Tucker v. Com.. 145 Ky. 84, 140 SW 73; Com. v. Hargis, 124 Ky. 356, 99 SW 348, 30 KyL 510; Com. v. Carnes, 124 Ky. 340, 98 SW 1045. 30 KyL 506; Com. v. Hicks, 82 SW 265, 26 KyL 511; Powers v. Com., 110 Ky. 386, 61 SW 735, 63 SW 976, 22 KyL 1807, 53 LRA 245; Thompson v. Com., 1 Metc. 13. be committed through the instrumentality of an innocent agent is a principal in the first degree.65 This is true, although he was not present at the time and place of the cirme.66 One whose only conneetion with the homicide is in aiding in concealing the dead body of the victim is liable only as an accessary after the fact.67 [32] c. Principals in the Second Degree and Accessaries before the Fact68-(1) Definitions and Distinctions-(a) Principals in the Second Degree-aa. Definition. Principals in the second degree in the commission of a homicide are those who are present, actually or constructively, at the time and place of its commission, aiding and abetting or otherwise participating therein, but not directly causing the death.69 against as a juvenile delinquent, is nevertheless a criminal, since without that election she could be prosecuted for felony, and the state recognizes the prosecution of a juvenile delinquent as a criminal proceeding, so that one who commanded and encouraged her to commit the offense may be convicted as an accomplice. Smith v. State, (Tex. Cr.) 237 SW 265. Principal acting through innocent agent see infra § 31. 60. State v. Burbage, 51 S. C. 284, 294. 28 SE 937. "It is not difficult to conceive of a case in which the person who actually committed a homicide could not be convicted by reason of incapacity to commit a crime, and we cannot accept the doctrine contended for, which would exempt the person who procured the commission of the crime from any punishment." State v. Burbage, supra. 61. U. S. v. Van Schaick, 134 Fed. 592. 62. Principals in the first degree: Generally see Crimminal Law § 107. In assault with intent to murder or kill see infra V in 30 C. J. 63. Ala.-Smith v. State, 8 Ala. Fla.-Green v. State, 40 Fla. 191, 23 S 851. Mass.-Com. v. Bowen, 13 Mass. 356. 7 AmD 154. Miss.-Wynn V. State, 63 Miss. A. 187, 62 S 575. Hermann, 117 Mo. 629, 23 SW 1071; State v. Stacy, 103 Mo. 11, 15 SW 147. 260. Mo.-State V. Oh.-Stephens v. State, 42 Oh. St. 150; Hanoff v. State, 37 Oh. St. 178, 41 AmR 496; Warden v. State, 24 Oh. St. 143. Okl.-Radke v. State, (Cr.) 187 P 500; Collins V. State, 15 Okl. Cr. 96, 175 P 124: Reeves v. Terr., 10 Okl. 194. 61 P 828. Or. State v. Steeves, 29 Or. 85, 43 P 947. Philippine.-U. S. v. Ancheta. 15 Philippine 470; U. S. v. Asilo, 4 Philippine 175. S. D.-State v. Phelps, 5 S. .D. 480, 59 NW 471. Tex. Wilkerson v. State, (Cr.) 57 SW 956; Stokes V. State, 41 Tex. Cr. 169, 53 SW 106; Red v. State, 39 Tex. Cr. 667, 47 SW 1003. 73 AmSR 965; Carlisle v. State, 31 Tex. Cr. 537, 21 SW 358; Phillips v. State, 26 Tex. A. 228, 9 SW 557, 8 AmSR 471. Utah.-Peo. v. Callaghan, 4 Utah 49, 6 P 49. Wash-State v. Beebe, 66 Wash. 463, 120 P 122. Eng. Reg. v. Manning, 2 C. & K. 887, 61 ECL 887. 59. Smith v. State, (Tex. Cr.) 237 SW 265. [a] Illustration.-One who commits a homicide while under the age of eighteen years so as to have the option under L. 4th Called Sess. (1918) c 26 § 1. to be proceeded Ga.-Morgan v. State, 120 Ga. 294, 48 SE 9. Mo.-State v. Melvin, 166 Mo. 565, 66 SW 534. N. C.-State v. Powell, 168 N. C. 134. 140. 83 SE 310 [cit Cyc]. Tex. Sapp V. State. 87 Tex. Cr. 606. 223 SW 459; Red v. State, 39 Tex. Cr. 667, 47 SW 1003, 73 AmSR 965; Guffee v. State, 8 Tex. A. 187. Va.-Horton v. Com., 99 Va. 848, 38 SE 184. Wis.-Connaughty v. State, 1 Wis. 159. 60 AmD 370. Eng. Reg. v. Young, 8 C. & 644. 34 ECL 939. P. Ont. Reg. v. Smith, 38 U. C. Q. B. 218. 64. Roney v. State, 76 Ga. 731: Bennett V. Com.. 150 Ky. 604, 150 SW 806, 43 LRANS 419. [a] Thus, where two persons in one encounter both shoot a person. each is guilty of homicide as a principal in the first degree if he actually inflicts the fatal wound, contributes thereto. or hastens the death in some minor way. Bennett v. Com., 150 Ky. 604, 150 SW 806, 43 LRANS 419. See Fisher v. State. 10 Lea (Tenn.) 151 (if the death of the person attacked results from the joint effect of mortal wounds inflicted by the persons attacking, then the latter are all equally guilty regardless of the consideration whether they acted in concert or pursuant to a common preconceived design). Necessity of identification of actua perpetrator see infra § 45. 65. Johnson v. State, 142 Ala. 70, 38 S 182, 2 LRANS 897; Red v. State, 39 Tex. Cr. 667, 47 SW 1003, 73 AmSR 965; Reg. v. Pitts, C. & M. 284, 41 ECL 159; Reg. v. Tyler, 8 C. & P. 616, 34 ECL 923. [a] Illustrations.- (1) If the actual perpetrator of a homicide is insane and, therefore, criminally irresponsible, those who were present at the scene of the crime aiding and abetting in the common purpose are principals in the first degree. Johnson v. State, 142 Ala. 70. 38 S 182, 2 LRANS 897; Reg. v. Tyler, 8 C. & P. 616, 34 ECL 923. (2) A defendant is a principal where he caused deceased on well grounded fear of immediate violence at his hands to leap into a river and drown. Reg. v. Pitts, C. & M. 284, 41 ECL 159. Accomplice of one not subject to punishment for felony see supra § 30 text and note 61. Commission of crime by agent generally see Criminal Law § 108 et seq. 66. Johnson v. State, 142 Ala. 70. 38 S 182, 2 LRANS 897: Brunson v. State, 124 Ala. 37, 27 S 410: Johnson v. State, 92 Ga. 36, 17 SE 974; Red v. State, 39 Tex. Cr. 667. 47 SW 1003, 73 AmSR 965; Reg. v. Michael, 9 C. & P. 356. 38 ECL 213; Rex v. Harley. 4 C. & P. 369. 19 ECL 558; Gore's Case, 9 Coke 81a, 77 Reprint 853; J. Kelyng, p 53. [a] Illustrations.- (1) A defendant who put poison into drink with the intent that it should be drunk by deceased and that he be killed thereby is a principa! in the first degree if the drink was innocently given to deceased by another in the absence of defendant and without defendant's knowledge, and deceased died therefrom. Brunson v. State. 124 Ala. 37, 27 S 410; Reg. v. Michael, 9 C. & P. 356, 38 ECL 213. (2) Or if deceased, without knowing that the drink had been poisoned took it himself. Johnson v. State, 92 Ga. 36, 17 SE 974: Rex v. Harley, 4 C. & P. 369. 19 ECL 558; Gore's Case, 9 Coke 81a, 77 Reprint 853. 67. Peo. v. Keefer, 65 Cal. 232, 3 P 818: Peo. v. Farmer, 196 N. Y. 65, 89 NE 462. Accessaries after the fact see infra §§ 50-53. 68. Principal in second degree generally see Criminal Law § 112 69. U. S.-U. S. v. Ross, 27 F. Cas. No. 16,196, 1 Gall. 624. Ala.-Jones v. State, 120 Ala. 303, 25 S 204; Martin V. State, 89 Ala. 115, 8 S 23, 18 AmSR 91; Smith v. State. 8 Ala. A. 187, 62 S 575. Ark.-Greene v. State, 71 Ark. 643, 70 SW 1038; Freel v. State, 21 Ark. 212. Fla.-Green v. State, 40 Fla. 191, 23 S 851; Bryan v. State, 19 Fla. 864. Ga.-Johnson v. State, 110 SE 211: Johnson v. State, 151 Ga. 21, 105 SE 603 [overr Washington v. State, 36 Ga. 222; Shaw v. State, 40 Ga. 120]; Morgan v. State, 120 Ga. 294. 48 SE 9; Washington v. State, 68 Ga. 570; Boyd v. State, 17 Ga. 194; Pope v. State, 13 Ga. A. 711, 79 SE 909. Ill-White v. Peo., 139 Ill. 143, 28 NE 1083. 32 AmSR 196; Coates v. Peo., 72 Ill. 303; Kennedy v. Peo.. 40 Ill. 488. §§ 33-34] HOMICIDE At [33] bb. Presence-(aa) In General. common law, in order to render one a principal in the second degree, his presence, either actual or constructive, at the time and place of the homicide is essential.70 71 The Constructive Presence." [§ 34] (bb) presence at the time and place of the commission of a homicide required to render one a principal in the Ind.-Williams V. State, 47 Ind. 568. Ky.-Powers v. Com., 110 Ky. 386, 61 SW 735, 63 SW 976, 53 LRA 245, 22 KyL 1807; Howard v. Com., 110 Ky. 356, 61 SW 756, 22 KyL 1845; Plummer v. Com., 1 Bush 76; Thompson v. Com., 1 Metc. 13; Miller v. Com., 5 KyL 427. La.-State v. Maxent, 10 La. Ann. 743. Mass.-Com., v. Knapp, 9 Pick. 496, 20 AmD 491. Minn.-State v. Lucy, 41 Minn. 60, 42 NW 697. Miss. McCarty v. State, 26 Miss. 299. Mo.-State v. Melvin, 166 Mo. 565, 66 SW 534; State v. Hermann, 117 Mo. 629, 23 SW 1071; State v. Orrick, 106 Mo. 111, 17 SW 176, 329; State v. Gooch, 105 Mo. 392, 16 SW 892. Nebr.-Jahnke v. State, 154, 94 NW 158, 104 NW 154; Hill v. State, 42 Nebr. 503, 60 NW 916; Walrath v. State, 8 Nebr. 80. 72. was second degree may be constructive.72 One is deemed to be constructively present at the time and place of the commission of a homicide, where he is at the time performing any act in furtherance of the comor is so situated as to mission of the homicide,73 make his personal assistance in the commission The mere fact that one is a thereof available.74 party to a conspiracy to commit a homicide does Tex.-Roebuck v. State, 85 Tex. Cr. by it, met the express, and in the held that the 524, 213 SW 656; Menefee v. State, attempt to rob it one of the guards was killed, it 67 Tex. Cr. 201, 149 SW 138; Clark one giving the signal was, in conof law, constructively v. State, 60 Tex. Cr. 173, 131 SW Cr. templation Bowen V. State, 47 Tex. 13 Nev. cide. State v. Hamilton, 556; trial for on a (2) Where, 137, 82 SW 520; Grimsinger v. State, present at the scene of the homi44 Tex. Cr. 1, 69 SW 583. 386. homicide, committed by third persons, the evidence showed a conspiracy between accused and the third persons to rob, in the attempted perpetration of which the homicide occurred, and that it was the duty of accused to go to the place where the persons to be robbed were, and to ascertain their unprepared conpersons, and that he did so, he was dition and to give notice to the third a "principal" to the killing, although two hunhe was one hundred or Bass difficulty. dred yards from the scene of the v. State, 59 Tex. S. V. watch.-U. Cr. 186, 127 SW 1020. [c] Keeping Douglass, 25 F. Cas. No. 14,989, 2 Blatchf. 207; U. S. v. Neverson, 12 V. State, D. C. 152; Berryhill v. State, 151 Ga. 416, 107 SE 158; Collins 14 SE 474; Stipp Ga. 347. 88 State, 11 Ind. 62; Peo. v. Michalow, 229 N. Y. 325, 128 NE 228; U. S. v. Reogilon, 22 Philippine 127; Lake v. State, 79 Tex. Cr. 234, 184 SW 213; Martin v. State, 44 Tex. Cr. 279, 70 44 v. State, 973; Grimsinger SW Tex. Cr. 1, 69 SW 583; Faulkner v. State, 43 Tex. Cr. 311, 65 SW 1093; Horton v. Com., 99 Va. 848, 38 SE 184; Mitchell v. Com., 33 Gratt. (74 Va.) 845; Rex v. Culkin, 5 C. & P. 121, 24 ECL 484. 71. What constitutes constructive U. S.-U. S. v. Douglass, 25 N. M.-Terr. v. McGinnis, 10 N. M. 269, 61 P 208. N. Y.-Peo. v. Flanigan, 174 N. Y. 356, 66 NE 988; Peo. v. Wilson, 145 Ruloff V. N. Y. 628, NE 392; 40 Peo., 45 N. Y. 213; Carrington v. Peo., 6 Park. Cr. 336. V. N. C.-State v. Freeman, 122 N. C. Hill. 72 1012, 29 SE 94; State N. C. 345; State v. Merritt, 61 N. C. 134. Pa.-Com. v. Kern, 1 Brewst. 350; Com. v. Weiland, 1 Brewst. 312. S. C.-State v. Davis, 88 S. C. 204. 70 SE 417; State v. Putman, 18 S. C. 175, 44 AmR 569; State v. Anthony, 12 S. C. L. 285. V. V. V. Tex.-Burrell v. State, 18. Tex. 713; Sapp v. State, 87 Tex. Cr. 606, 223 SW 459; Menefee v. State, 67 Tex. 138; Franklin Cr. 201, 149 SW State, 45 Tex. Cr. 470, 76 SW 473; Johnson v. State, 45 Tex. Cr. 453, 77 SW 15; Renner v. State, 43 Tex. Cr. 347. 65 SW 1102; Chapman State, 43 Tex. Cr. 328, 65 SW 1098. V. State, AmSR 874; Faulkner 96 43 Tex. Cr. 311, 65 SW 1093; Red v. State, (Cr.) 53 SW 619; Pryor State. 40 Tex. Cr. 643, 51 SW 375; Alexander v. State, 40 Tex. Cr. 395, 49 SW 229, 50 SW 716; Red v. State, 39 Tex. Cr. 667, 47 SW 1003, 73 Am v. State, (Cr.) | SR 965; Williamson State, 26 43 SW 523; Phillips v. Tex. A. 228, 9 SW 557, 8 AmSR 471; Taylor v. State, 9 Tex. A. 100. Va.-Horton v. Com., 99 Va. 848, 38 SE 184. Va.-State V. W. Va. 132, 43 SE 230. Prater, 52 W. at the fact. ial Accessaries who were present Formerly those aiding and abetting were called acand at fact the cessaries treated as accessaries, but now all present participating in the crime Jolly V. are treated as principals. State, 94 Ala. 19, 10 S 606; State v. Arden, 1 S. C. L. 487. 70. KV-Landrum v. Com., 123 Ky. 472, 96 SW 587, 29 KyL 924; Wheeler v. Com., 120 Ky. 697, 87 SW 1106, Com., 1 27 KyL 1090; Plummer v. Bush 76. Mass.-Com. v. Knapp, 9 Pick. 496, 20 AmD 491. Cal.-Peo. v. Majors, 65 Cal. 138, Ga.-Collins v. State, 88 Ga. 347, Mass.-Com. v. Knapp, 9 Pick. 496, Miss. Dean v. State, 85 Miss. 40, 37 S 501. Nev.-State v. Hamilton, 13 Nev. [d] Continuing omission.-In order to constitute an aider and abettor a principal in the violation of the law requiring steamship owners to equip ships with life preservers, that he necessary it is not etc., should have been present at the time was consummated by the death since the conduct or of a person, omission which constituted the criminal breach of duty was continuous. U. S. v. Van Schaick, 134 Fed. 592. 74. D. C.-U. S. v. Neverson, 12 D. C. 152. Tex.-Lake v. State, 79 Tex. Cr.it 9 SW 557, 8 AmSR 471; Kirby v. Va.-Horton v. Com., 99 Va. 848, Eng. Reg. v. Manning. 2 C. & K. a pre [a] Preventing information.-One State, 74 Tex. Tex.-Gonzales v. Cr. 458, 171 SW 1146; Smith v. State, 52 Tex. Cr. 27. 105 SW 182; Pryor Tex. Cr. 643, 51 SW v. State, 40 One who [a] Illustrations.—(1) 375. went with the principal toward the of the crime armed with a rifle for the purpose of aiding the principal but remained one hundred and fifty yards in the rear was held 900. to have been constructively present. State V. Chastain, 104 N. C. (2) And so it was held with of one who was with the principal 10 SE 519. which the crime was committed a and handed him the weapon few moments before its commission, or four minutes before it was comalthough he had left the place three mitted. State v. Douglass, 34 La. (3) And where the crime Ann. 523. was committed near a state bounacdary line, it was held that an not show constructive presence.75 Statutes sometimes provide that the presence required to constitute one a principal in the second degree need not be actual standing by, within sight or hearing of the act. 70 [35] cc. Principals in the Second Degree to Manslaughter. There may be principals in the second degree to voluntary manslaughter," and, according to the weight of authority, to involuntary manslaughter, as in the case where a death is caused in the commission of an unlawful act not amounting to a felony,' or in negligently doing some act lawful in itself, although there is authority to the con trary. 80 78 [§ 36] (b) Accessaries before the Facts1-aa. Definition. An accessary before the fact in the commission of a homicide is one who was not present either actually or constructively at the time and place of its commission, but who counseled, procured, instigated, or commanded the actual perpetrator to commit the offense, or otherwise assisted therein.82 The crime of an accessary before the fact to a homicide is not complete until the killing is consummated, and this rule is not affected by the statutes abolishing the distinctions between accessaries before the fact and principals.83 [§ 37] bb. Absence. It is essential that one charged as an accessary before the fact in the commission of a homicide should not have been present either actually or constructively at the time of its commission. 84 [38] cc. Accessaries before the Fact to Manslaughter. At common law, and under statutes declaratory thereof, there cannot be accessaries before the fact to voluntary manslaughter, which is a killing in the heat of sudden passion and without malice, and is, therefore, inconsistent with the idea complice who remained across the Oh.-Hagan v. State, 10 Oh. St. [b] To be constructively present the accomplice must be where he may actually aid the principal if necessary. It is not enough that he is at an appointed place where the perpetrator erroneously supposes he could render aid. Com. v. Knapp, 9 Pick. (Mass.) 496, 20 AmD 491. 75. State V. Wisdom, 8 Port. (Ala.) 511; Com. v. Knapp, 9 Pick. (Mass.) 496, 20 AmD 491. 76. See statutory provisions; and Collins v. State, 88 Ga. 347, 14 SE 474. 77. Ala.-Morris v. State, 146 Ala. 66, 41 S 274; Martin v. State, 89 Ala. 115, 8 S 23, 18 AmSR 91; State v. Coleman, 5 Port. 32. Ark.-Adkisson v. State, 142 Ark. 34, 218 SW 167; Turner v. State. 121 Ark. 40, 180 SW 211; Sneed v. State, 47 Ark. 180, 1 SW 68; Freel v. State, 21 Ark. 212. Cal.-Peo. v. Morine, 138 Cal. 626, 72 P 166; Peo. v. Weber, 66 Cal. 391, 5 P 679; Peo. v. Jamarillo, 57 Cal. 111; Peo. v. Newberry, 20 Cal. 439; Peo. v. Sidelinger, 9 Cal. A. 298, 99 P 390. Ga.--Boyd v. State, 17 Ga. 194, 202; Brown v. State, 26 Ga. A. 189, 105 SE 723; Mills v. State, 24 Ga. A. 68, 100 SE 32: McDonald v. State, 23 Ga. A. 125, 97 SE 556; Pope v. State. 13 Ga. A. 711, 79 SE 909; Maughon v. State, 9 Ga. A. 559, 71 SE 922. 232, Ill.-Peo. v. Barrett, 261 Ill. Prime, 26 Ind. 196; V. Gray, 116 Iowa Kan.-State v. Bogue, 52 Kan. 79, 34 P 410. Ky.-Wheeler V. Com., 120 Ky. 697, 87 SW 1106, 27 KyL 1090; Arnold v. Com., 55 SW 894, 21 KyL 1566; Polly v. Com., 24 SW 7, 15 KyL 502; Hinkle v. Com., 11 SW 778, 11 KyL 222; Galloway v. Com.. KyL 162; Miller v. Com., 5 KyL 427. 7 La.-State v. Douglass, 34 La. Ann. 523; State v. Maxent, 10 La. Ann. 743; State v. Desmond, 5 La. Ann. 398. Mass.-Com. v. Roberts, 108 Mass. 296. Mich.-Peo. V. Carter, 96 Mich. 583, 56 NW 79. Mo.-State V. Hermann, 117 Mo. 629, 23 SW 1071 [overr State v. Phillips, 117 Mo. 389, 22 SW 1079]. N. M.-U. S. v. Densmore, 12 N. M. 99, 75 P 31. N. Y.-Peo. v. Keating, 61 Hun 260, 16 NYS 748; Peo. V. Garretson. 2 Wheel. Cr. 347. Or.-State v. Holbrook, 98 Or. 43, 188 P 947, 192 P 640. 193 P 434; State v. Fitzhugh, 2 Or. 227. S. C.-State v. Putnam, 18 S. C. 175, 44 AmR 569. Tex.-Burnam v. State, 61 Tex. Cr. Va.-Campbell v. Com., 107 SE 812. Eng. Reg. v. Harrington, 5 Cox 397. 78. Ala.-State v. Absence, 4 Port. Mich.-Peo. V. Carter, 96 Mich. Oh.-Woolweaver v. State, 50 Oh. Vt.-State v. Center, 35 Vt. 378. 304. 87 NW 1076. Eng. Reg. v. Taylor, L. R. 2 C. C. 147; Rex v. Murphy, 6 C. & P. 103. 25 ECL 343. Contra Reg. v. Skeet, 4 F. & F. 931. [a] Illustrations.—(1) If a person commits an assault upon another with a deadly weapon, but his intention to assault with a deadly weapon was unknown to another person charged in the same indictment as principal in the second degree, and such other person intended to sexual intercourse with her and thereby causing her death are guilty of manslaughter. State v. Center, 35 Vt. 378. 79. Reg. v. Salmon, 6 Q. B. D. 79; Reg. v. Swindall, 2 C. & K. 230, 61 ECL 230. Where [a] Illustrations.— · (1) three persons went out together for rifle practice and four or five shots were fired under circumstances constituting negligence, and one of them killed a boy, all three were guilty of manslaughter. Reg. v. Salmon, 6 Q. B. D. 79. (2) One who encouraged another to drive furiously along a turnpike, whereby the other negligently ran over and killed a traveler, was guilty of manslaughter. Reg. v. Swindall, 2 C. & K. 230, 61 ECL 230. 80. Adams v. State, 65 Ind. 565. Contra Goff v. Prime, 26 Ind. 196. 81. Accessaries before the fact generally see Criminal Law § 125. Assault with intent to murder see infra V in 30 C. J. 82. U. S.-U. S. V. Ramsay, 27 F. Cas. No. 16,115, Hempst. 481. Ala.-Brunson v. State, 124 Ala. 37, 27 S 410; Smith v. State, 8 Ala. A. 187. 62 S 575. Ill-Spies v. Peo., 122 Ill. 1, 17 NE 898, 3 AmSR 320. Iowa.-State v. McCahill, 72 Iowa 111, 30 NW 553, 33 NW 599. Ky-Wheeler v. Com., 120 Ky. 697, 87 SW 1106, 27 KyL 1090; Keithler v. State, 18 Miss. 192. Mo.-State v. Stacy, 103 Mo. 11, 15 SW 147. Nev.-Ex p. Willoughby, 14 Nev. 451. N. D.-State v. Kent, 4 N. D. 577, 62 NW 631, 27 LRA 686. Tex.-Jones v. State, 13 Tex. 168, 62 AmD 550; Gonzales v. State, 74 Tex. Cr. 458, 171 SW 1146; Cain v. State, 42 Tex. Cr. 210, 59 SW 275; Henry v. State, (Cr.) 49 SW 96, 50 SW 399. Eng. Parker's Case, 2 Dyer 186a, 73 Reprint 410; Rex v. Borosky, 9 How. St. Tr. 1, 79. participate in the assault and Ont.-Reg. v. Smith, 38 U. C. Q. [a] Murder and accessary to murder distinguished.-To commit murder and to be accessary to it are different offenses, so that a statute providing for the punishment of murder does not authorize the punishment of accessaries before the fact. U. S. v. Ramsay, 27 F. Cas. N. C.-State v. Robertson, 166 N. in using, with a woman's consent, 83. State v. Chittem, 13 N. C. 49: State v. Steeves, 29 Or. 85. 43 P 947; State v. Ayers, 8 Baxt. (Tenn.) 96. 84. Freel v. State, 21 Ark. 212: Wheeler v. Com., 120 Ky. 697, 87 SW 1106, 27 KyL 1090; Williams v. State, 65 Tex. Cr. 193, 144 SW 622; Johnson v. State, 45 Tex. Cr. 453, 77 SW 15: Connaughty v. State, 1 Wis. 159, 60 AmD 370. |