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CHAPTER THE SECOND.

OF PRINCIPALS AND ACCESSORIES.

WAERE two or more are to be brought to justice for one and the same felony, they are considered in the light either,-1. of principals in the first degree; II. principals in the second degree; III. accessories before the fact; or, IV. accessories after the fact. And in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime. (a)

I. Principals in the first degree are those who have actually and Principals in with their own hands comunitted the fact ; and it does not appear

the first degree, necessary to say any thing in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the different offences in the course of the work.

II. Principals in the second degree are those who were present Principals in aiding and abetting at the commission of the fact. They are ge- the second nerally termed aiders and alettors, and sometimes accomplices;

degree. but the latter appellation will not serve as a term of definition, as it includes all the participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. (1) The distinction between principals in the first, and principals in the second degree; or, to speak more properly, the course and order of proceeding against offenders founded upon that distinction, appears to have been unknown to the most ancient writers on our law; who considered the persons present aiding and abetting in no other light than as accessories at the fact. (c) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule; and at length it became settled law that all those who are present aiding and abetting when a felony is committed are principals in the second degree. (d)

(a) Fost. 417.
(b) Fost. 341.
(c) Fost. 347.

(d) Coal-heavers' case, i Leach 66. And see Fost. 428. and Rex v. Towle and others, Mich. T. 1816. Russ. and Ry. 314. This law was by no means

settled till after the time of Edw. 3.; and so late as the first of Queen Mary a chief justice of England strongly doubted of it, though indeed it had been sufficiently settled before that time.

How far a

In order to render a person a principal in the second degree, or principal in the second dean aider and abettor, he

must be present aiding and abetting at the gree must be

fact, or ready to afford assistance if necessary: but the presence present at the need not be a strict actual immediate presence, such a presence time of the fact committed. as would make him an eye or ear witness of what passes,

but

may be a constructive presence. So that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprize, 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 the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to insure the success of their common enterprize. (e) But there must be some participation; therefore, if a special verdict against a man as a principal does not shew that he did the act, or was present when it was done, or did some act at the time in aid which shews that he was present aiding and assisting, or that he was of the same party, in the same pursuit, and under the same expectation of mutual defence and support with those who did the fact, the prisoner cannot be convicted. (2) So, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in that maiming. (y). And it is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up a little before he uttered it, joined him again in the street a short time after the uttering, and at a little distance from the place of uttering, and ran away when the utterer was apprehended. (c) This case has however been considered as having been decided upon the principle, that the circumstances which will amount to a constructive presence at common law will not be sufficient for the same purpose upon an indictment under a statute, (d) The general rule however applies to offences by statute as well as at common law, viz. that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a common design, of whieh the offence is part. (a) And it has been considered, in a case where three persons were charged with uttering a forged note, that other acts done by all of them jointly, or by any of them separately, shortly before the offence, may be given in evidence to shew the confederacy and common purpose, although such acts constitute distinct (e) Fost. 350. 2 Hawk. P. C. c. 29.

Ry. 113. s. 7, 8.

(d) By Graham, B..in the case of (2) Rex v. Borthwick, Dougl. 207. Brady and others, O. B. June, 1813,

(y) Rex v. White and Richardson, I Stark. Crim. Plead. 80. in the pote. Hil. T. 1806. Russ. and Ry. 99, post, . (a) Rex v. Tattersall, Sedgewick Book III. Chap. x.

and Hodgson, East. T. 1901. MS. Bay(c) Rex v. Davis and Hall, East. T. 1806. MS. Bayley, J. and Russ, and

ley, J.

felonies. (b) And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence.(c)

Going towards the place where a felony is to be committed, in order to assist in carrying off the properly, and assisting accordingly, will not make the party a principal if he was at such a distance at the time of the felonious taking as not to be able to assist in it.

The prisoner and J. S. went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking. (d)

But where a man committed a larceny in a room of a house, in which room he lodged, and threw a bundle containing the stolen property out of the window to an accomplice who was waiting to receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice: but as the jury had found that the thief threw the things out of the window, and that the accomplice (whose defence was that he had picked up the bundle in the street) was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong.(e)

When an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal. Thus, if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a murder or other crime, the inciter is the principal ex necessitate, though he were absent when the thing was done. (e) And if a man give another a forged note that the other

may

utter it, if the latter be ignorant of the note being forged, the uttering by the latter is, it seems, the uttering of the former, though the former were absent at the time of the actual uttering. (f) But if the person who received the note knew that it was forged, the person who gave it would not, as it should seem, be punishable as a principal. For where a person having incited another to lay poison is absent at the time of laying it, he is an accessory only, though he prepared the poison, if the person laying it is amenable as a principal ; but is punishable as a principal if the person laying the poison is not so amenable. (g) Where poison is laid for a man, and all who were present and concurred in laying it are absent at

(6) Id ibid. (c) Id. ibid.

(d) Rex v. Kelly, Mich. T. 1820. MS. Bayley, J. and Russ. avd Ry. 421. And see post, Book IV. Chap. xxi. Of receiving stolen goods.

(e) Rex v. Owen, East. T. 1825. Ry.

and Mood. C. C. R. 96.

(e) Fost. 340. Kel. 52. Post, Book III. Chap. i.

(f) Rex v. Palmer and Hudson, 1 New Rep. 96. Post, Book IV.Chap. XXX.

(g) Fost. 349.

secution of

purpose.

the time it is taken by the party killed by taking it, all are principals; otherwise all would escape punishment. (1)

It has been held, that to aid and assist a person to the jurors unknown to obtain money by the practice of ring-dropping is felony, if the jury find that the prisoner was confederating with the person unknown to obtain the money by means of this practice.() And if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods off, all will be guilty of felony, the receipt by one under such circumstances being a felo

nious taking by all. (a) Murder by

If a fact amounting to murder should be committed in prosecuseveral in pro- tion of some unlawful purpose, though it were but a bare trespass, some unlawful

all persons who had gone in order to give assistance, if need were, for carrying such unlawful purpose into execution, would be guilty of murder. But this will apply only to a case where the murder was committed in prosecution of some unlawful purpose, some common design in which the combining parties were united, and for the effecting whereof they had assembled; for unless this shall appear, though the person giving the mortal blow may himself be guilty of murder, or manslaughter, yet the others who came together for a different purpose will not be involved in his guilt. (g) Thus where three soldiers went together to rob an orchard ; two got upon a pear-tree, and the third stood at the gate with a drawn sword in his hand; and the owner's son coming by collared the man at the gate, and asked him what business he had there, whereupon the soldier stabbed him; it was ruled to be murder in the man who stabbed, but that those on the tree were innocent. It was considered that they came to commit a small inconsiderable trespass, and that the man was killed upon a sudden affray without their knowledge. But the decision would have been otherwise if they had all come thither with a general resolution against all opposers; for then the murder would have been committed in prosecution of their original purpose. (h)

(h) Fost. 349. Kel. 52. 4 Co. 44 b.
(f) Moore's case, I Leach 314.

(a) Rex v. Standley, East. T. 1816.
MS. Bayley, J. and Russ. aud Ry. 305.
Rex v. County, MS. Bayley, J. Post,
Book IV. Chap. vi. s. 1.

(g) Fost. 351, 359. 2 Hawk. P. C.
c. 29. s. 7.

(h) Fost. 353. Case at Sarum Lent A-sizes, 1697, MS. Denlon and Chapple, 2 Hawk. P. C. c. 29. s. 9. And see Rex v. Hodgson and others, I Leach 6.; and an Anon. case at the Old Bailey, io Deceniber Sessions, 1664. i Leach 7. note (a) where several soldiers, who were employed by the mes. sengers of the Secretary of State to assist in the apprehension of a person, unlawfully broke open the door of a

house where the person was supposed to be ; and having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony in all; and Holt, C. J. citing the case, says, “ That “ they were all engaged in an unlawful “act is plain, for they could not jus

tify breaking a man's house without

making a demand first ; yet all those s who were not guilty of the stealing " were acquitted, notwithstanding

their being engaged in one unlawful “act of breaking the door ; for this

reason, because they knew not of any such intent, but it was a chance

opportunity of stealing, whereupon " some of them did lay hands."

resolution

For where there is a general resolution against all opposers, or where there whether such resolution appears upon evidence to have been ac

is a general tually and explicitly entered into by the confederates, or may be against all reasonably collected from their number, arms, or behaviour, at or opposers. before the scene of action, and homicide is committed by any of the party, every person present in the sense of the law when the homicide is committed will be involved in the guilt of him that gave

the mortal blow. (*)

But it must be observed that this doctrine respecting the whole But where the party being involved in the guilt of one or more, will apply only to purpose was such assemblies as are formed for carrying some common purpose be murder unlawful in itself into execution. For if the original intention only in the was lawful, and prosecuted by lawful means, and opposition is party killing made by others, and one of the opposing party is killed in the and his actual struggle, in that case the person actually killing may be guilty of abettors. murder or manslaughter, as circumstances may vary the case : but the persons engaged with him will not be involved in his guilt, unless they actually aided or abetted him in the fact; for they assembled for another purpose which was lawful, and consequently the guilt of the person actually killing cannot by any fiction of law be carried against them beyond their original intention. (k)

When the rule was first settled that aiders and abettors should As to the be deemed principals in the second degree, and not accessories at aiders and

punishment of the fact, the object in view was probably to bring such offenders abettors. more speedily and certainly to their trial; (l) without any intention of enhancing the measure of their punishment upon conviction. Nor would the consequence of an increased punishment have immediately followed from the rule, as the distinction between principals and accessories did not at that time affect the life of the party upon conviction : and all were then alike liable to suffer death, from the principal in the first degree to the accessory in the lowest, unless the privilege of clergy, which in those days was founded solely on the clerical function or capacity of the delinquent, interpõsed. Whether principals or accessories, therefore, the punishment would have been capital to those who were not entitled to the privilege of clergy; and to those who were entitled, the punishment would not have been capital, though principals in the highest degree. But in later times the question of principal or accessory has become a matter of the greatest importance to the prisoner; in many cases life or death to him; for by wiser regulations the allowance or non-allowance of clergy no longer depends upon the function and capacity of the offender but upon the nature of the offence; and is extended, in cases in which it is allowable, to all ranks and orders of men. (m)

Now, it being admitted as a settled rule that aiders and abettors Whether liable are to some purposes at least principals in the second degree, it has to be punished been made a question whether they ought to be so considered to the first degree.

(i) Fost. 353, 354. 2 Hawk. P. C. c. 29. S. 8.

(le) Post. 354, 355. 2 Hawk. P. C. C. 29. s. 9. And sce further upon this point, post, Book III. Chap.iji. on Homicide.

() Ante, p. 21.

(m) 3 & 4 Will. and Mary, c. 9. s. 6. 5 Ann. c. 6. s. 4. Vide Fost. 359. By 6 Geo. 4. c. 25. s. 3. clerks in holy orders convicted of felony are made liable to punishment, as other persons not in holy orders.

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