S. P. Same Point. Salk. Salkeld's Reports. Sand. U. & T. Sunders on Uses and Trusts. Say. Sayer's Reports. Scho & Lef. Scob. Acts. Schoales and Lefroy's Reports. Scobell's Acts of Parliament during the usurpation. Selw. N. P. Selwyn's Nisi Prius. Semb. Show. It seems. Shower's Reports. Sid. Siderfin's Reports. Skinn. Skinner's Reports. Spell. Gloss. Spelman's Glossary. Stat. at Large. Statutes at Large of Virginia (by Hening.) Stor. Plead. Storey's Pleadings. Str. Strange's Reports. Style. Style's Reports. Sug. L. V. Sugden's Law of Vendor's. Sug. Pow. Sugden on Powers. Sum. Hale's Summary of the Pleas of the Crown. T. L. Terms of the Law. T. Tayl. Taylor's Reports (North Carolina.) Term. Rep. Term Reports (by Durnford and East.) Tidd. Prac. F. Tidd's Appendix, or Practical Forms. Toll. L. Ex. Toller's Law of Executors. Tyng. Massachusetts Term Reports (by Tyng.) Vaugh. Vaughan's Reports. Vent. Ventris's Reports. Vern. Vernon's Reports. Ves. Vesey's Reports. V. Ves. jr. Vesey, junior's, Reports. Vin. Abr. Viner's Abridgment. Vin. Supp. Supplement to Viner's Abridgment. W. Wash. Washington's Reports (Virginia.) Wats. L. P. Watson's Law of Partnership (Farrand's edit.) Went. Plead. Wentworth's System of Pleading. Willes. Willes's Reports. Wils. Wilson's Reports. Wood. Wood's Institutes. Y. Yelv. Yelverton's Reports. THE NEW VIRGINIA JUSTICE, &c. ACCESSORY. I. Of accessories in general. II. Of accessories before the fact. III. Of accessories after the fact. IV. How they are to be proceeded against. V. Warrants, Commitments, and Indictments against accessories. I. OF ACCESSORIES IN GENERAL. 1. AN Accessory is, he who is not the chief actor in the offence, nor present at its performance, but is someway concerned therein, either before 4 Bl. Com. 35. or after the fact committed. 2. In high treason there are no accessories, but all are principals: the same acts that make a man accessory in felony making him a principal in high treason, upon account of the heinousness of the crime. Ibid. 3. In petit treason, murder, and felonies, with or without benefit of clergy, there may be accessories: except only in those offences, which by judgment of law are sudden and unpremeditated, as man slaughter and the like; which therefore cannot have any accessories before the fact. 4 Bl. Com. 36. 4. In petit larceny, and in all 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: the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals,* on account of the heinousness of the crime; in trespass all are principals, because the law, which doth not regard trifles, does not descend to distinguish the different 'shades of guilt in petty misdemeanors. Ibid. This must be understood of treason under the laws of England. The constitution of the United States (art. 3. sec. 3.) has declared that treason shall consist only in levying war against the United States, or in adhering to their enemies within the same, giving them aid and comfort. See 4 Tuck. Bl. Appendix, note B. p. 41. 5. It is a maxim, that an accessory follows the nature of his principal: and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished, as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in a stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petty treason, and the stranger of murder. Ibid. 6. Lord Coke generally observes, that when any offence is felony, either by the common law or by statute, all accessories, both before and after the fact, are incidentally included. 3 Inst. 59, 73. 7. But yet the special penning of the statute, creating a felony, may greatly diversify the offence of accessory or principal. See 1 Hale. 614. and Haw. b. 2. c. 29. II. OF ACCESSORIES BEFORE THE FACT. An accessory before the fact committed is he, who, being absent at the time of the crime committed, doth yet procure, counsel, command, or abet another to commit a crime. 4 Bl. Com. 36. Being absent at the time of the crime committed. Absence is necessary to make him an accessory; for if such procuror, or the like, be present, he is guilty of the crime as principal. 4 Bl. Com. 36. So also if divers come to commit an unlawful act, and be present at the time of the felony committed, though one of them only doth it, they are all principals. Sum. 215. So if one present move the other to strike; or if one present did nothing, but yet came to assist the party, if needful; or if one hold the party while the felon strikes him; or if one present delivers his weapon to the other that strikes: for they are present, aiding, abetting, or comforting. Ibid. 216. So if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other unlawful in itself, and each taketh the part assigned him; some to purpose commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour (if need be) the escape of those who are more immediately engaged: they are all, provided the fact be committed, in the eye of the law, present at it. For it was made a common cause with them; each man operated in his station, at one and the same instant, towards one and the same common end; and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to ensure the success of their common enterprise. Fost. 350. But if one came casually, not of the confederacy, though he hindered not the felony, he is neither principal nor accessory, although he apprehended not the felon; but for his negligence he is punishable, by fine and imprisonment. Hale's Pl. 216. Haw. B. 2. c. 29. s. 10. Also in some cases even a person absent may be principal; as he that puts poison into any thing to poison another, and leaves it, though not present when it is taken: and so it seems are all that are present when the poison is so infused, and consenting thereunto. Sum. 216. Procure, counsel, command, or abet. In the construction of these words, some distinctions are necessary to be observed: as, (1) When the principal doth not accomplish the fact altogether in the same sort, us it was beforehand agreed between him and the accessory. And therefore if one commands another to lay hold upon a third person, and he lays hold upon him and robs him, the person commanding is not accessory to the robbery; for his command might have been performed without any robbery. 4 Bl. Com. 37. But 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 mere collateral circumstance. Ibid. So, if the command had been to beat him, and the party com. manded doth kill him, or beat him so that he dieth thereof; the person commanding shall be accessory to the murder: for it is a hazard in beating a man, that he may die thereof. Dalt. c. 161. (2) 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 ensues upon that unlawful act; but is not accessory to any act distinct from the other. As in the case last above mentioned, where A commands B to beat C, and he beats him so that he dies; B is guilty of murder as principal, and A as accessory. 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. 4 Bl. Com. 37. So, if one command another to steal a horse and he stealeth an ox; or to rob a man by the high way of his money, and he robs him in his house of his plate; or to burn such a one's house, and he burneth the house of another; these are other acts and felonies than he commanded to be done, and therefore he shall not be adjudged accessory to them. Dalt. c. 161. (3) It seems to be generally agreed, that he who barely conceals a felony which he knows to be intended is guilty only of a misprision of felony, and shall not be adjudg d an accessory. Haw. B. 2. c. 29. s. 23. (4) It is settled that whosoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. 4 Bl. Com. 37. (5) But if a man counsels or commands another to kill a person, and before he hath killed him, he who counselled or commanded it repents, and countermands it, charging him not to kill him, and yet after he doth kill him; here such person countermanding shall not be adjudged accessory to the murder: for generally the law adjudgeth no man accéssory to a felony before the fact, but such as continue in that mind at the time that the felony is done and executed. Dalt. c. 161. (6) Yet if a person advise a woman to kill her child as soon as it shall be born, and she kill it in pursuance of such advice; he is an an |