statutory felonies admit of accessaries to the same
extent as did felonies at common law;89 and the
fact that the statute mentions nothing about acces-
saries is immaterial.90 A statutory felony, even
though the offense originally at common law was a
misdemeanor, will admit of accessaries.91
[§ 101]

b. In Treason and Misdemeanors.

distinction between principals and accessaries applies only in the case of felonies, all who participate in treason 92 and in misdemeanors, if guilty and punishable at all, being principals and indictable as such.93 Thus, one who would have been an accessary before the fact if the offense had been a felony may be tried before the actual perpetrator

42 AmR 586; Karakutza v. State, 163 Charge to Grand Jury, 30 F. Cas. No. | Nichols, 10 Metc. 259, 43 AmD 432; Wis. 293, 156 NY 965.

terms declares a certain act to be a felony (1) it will involve the consequent liability of accessaries before or after the fact, unless it contains something inconsistent with that consequence; and where a statute in terms punishes not only the principal A. 31, 64 SE 341; Loeb v. State, 6 66; State v. De Boy, 117 N. C. 702,

away with the common-law distinction between principal and accessary, and under such statutes the accessary must still be indicted as such.1 And the same has been held true under a statute providing that the accessary shall be deemed in law a principal and punished accordingly, and also under statutes making it a distinct offense to procure another to commit a crime.3 So also statutes providing for the prosecution of accessaries before the fact jointly with the principal, and for their trial irrespective of whether the principal is tried or not, do not abolish the common-law distinction between accessaries before the fact and principals. And a statute providing that an accessary shall be proceeded against as a principal or as an accessary before the fact, according to the nature of the offense committed, and shall be punished as a principal, does not abolish the distinction existing between accessaries before the fact and principals.5

[§ 103] (2) (2) Statutes Abolishing Distinction. In many jurisdictions, however, the common-law distinction between accessaries before the fact and principals is entirely abolished, and accessaries before the fact, as in case of misdemeanors, are indicted, tried, and punished as principals. And a person indicted as principal may be convicted on v. State, 37 Ark. 274.

proof that he was an accessary, under a statute providing that the accessary may be "prosecuted and punished" as if he were the principal,' that the accessary before the fact "shall be deemed and considered as principal and punished accordingly," or that one who would have been an accessary before the fact at common law "is a principal."'9 Such statutes are general in their terms and are manifestly intended to meet cases not otherwise specifically provided for by statute;10 they have no application to acts which are by specific and distinct statutes expressly designated and made subject to

v. Scott, 80 Conn. 317, 68 A 258; State v. Carey, 76 Conn. 342, 56 A 632; State v. Hamlin, 47 Conn. 95, 36 AmR 54.

Del.-State v. Pullen, 19 Del. 184, 50 A 538.

D. C.-Maxey v. U. S., 30 A 63. Ga.-Stone v. State, 118 Ga. 705, 45 SE 630, 98 AmSR 145.

Ida.-State v. Cramer, 20 Ida. 639, 119 P 30; State v. Bland, 9 Ida. 796, 76 P 780; Terr. v. Guthrie, 2. Ida. (Hasb.) 432, 17 P 39.

Ill.-McCracken V. Peo., 209 Ill. 215, 70 NE 749; Usselton v. Peo., 149 Ill. 612, 36 NE 952; Hronek v. Peo., 134 Ill. 139, 24 NE 861, 23 AmSR 652, 8 LRA 837; Spies v. Peo., 122 Ill. 1, 12 NE 865, 17 NE 898, 3 AmSR 320; Coates v. Peo., 72 Ill. 303; Dempsey v. Peo., 47 Ill. 323; Brennan v. Peo., 15 Ill. 511; Baxter v. Peo., 8 Ill. 368.

Ind. Wade v. State, 71 Ind. 535; Doan v. State, 26 Ind. 495.

Iowa.-State v. Berger, 121 Iowa 581, 96 NW 109; State v. Smith, 106 Iowa 701, 77 NW 499; State v. Rowe, 104 Iowa 323, 73 NW 833; State v. Baldwin, 79 Iowa 714, 45 NW 297; State v. Empey, 79 Iowa 460, 44 NW 707; State v. Pugsley, 75 Iowa 742, 38 NW 498; State v. Hessian, 58 Iowa 68, 12 NW 77; State v. Thornton, 26 Iowa 79; State v. Brown, 25 Iowa 561; Bonsell v. U. S., 1 Greene 111.

Kan.-State v. Patterson, 52 Kan. 335, 34 P 784; State v. Cassady, 12 Kan. 550.

V.

Ky.-Com. v. Hargis, 124 Ky. 356, 99 SW 348, 30 KyL 510; Com. Carnes, 124 Ky. 340, 98 SW 1045, 30 KyL 1045.

Mich.-Peo. v. Hoek, 169 Mich. 87, 134 NW 1031; Peo. Wycoff, 150 Mich. 449, 114 NW 242; Peo. v. Stratton, 1 Mich. N. P. 33.

Minn.-State V. Whitman, 103 Minn. 92, 114 NW 363, 14 AnnCas 309; State v. Briggs, 84 Minn. 357, 87 NW 935; State v. Beebe, 17 Minn. 241.

Miss.-Osborne v. State, 99 Miss. 410. 55 S 52.

Mo.-State v. Edgen, 181 Mo. 582, 80 SW 942; State v. Johnson, 111 Mo. 578, 20 SW 302; State v. Orrick, 106 Mo. 111, 17 SW 176, 329; State V. Stacey, 103 Mo. 11. 15 SW 147; State v. Fredericks, 85 Mo. 145.

Mont.-State v. De Wolfe, 29 Mont. 415, 74 P 1084.

Nebr.-Jahnke v. State. 68 Nebr. 154, 94 NW 158, 104 NW 154.

Nev.-State v. Mangana, 33 Nev. 511, 112 P 693; State v. Chapman, 6 Nev. 320.

N. Y.-Peo. v. Fitzgerald, 156 N. Y. 253, 50 NE 846; Peo. v. McKane, 143 N. Y. 455, 38 NE 950; Peo. v. Bliven, 112 N. Y. 79, 19 NE 638, 8 AmSR 701; Peo. v. Maynard, 151 App. Div. 790, 137 NYS 19; Peo. v. Britton, 134 App. Div. 275, 118 NYS 989; Peo. v. Kellogg, 105 App. Div. 505, 94 NYS 617; Peo. v. Canepi, 93 App. Div. 379, 87 NYS 773 [rev on other grounds 181 N. Y. 398, 74 NE 473]; Peo. v. Mills, 41 Misc. 195, 83 NYS 947, 17 N. Y. Cr. 466 [aff 91 App. Div. 331, 86 NYS 529, 18 N. Y. Cr. 125, and 178 N. Y. 274, 70 NE 786, 67 LRA 131].

N. C.-State v. Bryson, 92 SE 698.

punishment as primary crimes in themselves.11

In Ohio there are no common-law crimes, and consequently the rule as to accessaries after the fact does not prevail.12

In Texas accessaries before the fact are by statute called accomplices,1 13 and the term 66 accessary" is applied only to those who at common law would be accessaries after the fact.14

[§ 104] 3. Who May Be Principals in Second Degree or Accessaries. One may be guilty as principal in the second degree, or as an accessary before the fact, by aiding in, or procuring or instigating 41 AmR 496; Hutchinson v. State, 28 Oh. Cr. Ct. 595.

N. D.-State v. Kent, 4 N. D. 577,
62 NW 631, 27 LRA 686.
Oh.-Hutchinson v. State, 28 Oh.
Cir. Ct. 595.

Okl.-Pearce v. Terr., 11 Okl. 438,
68 P 504; Reeves v. Terr., 10 Okl. 194,
61 P 828; Drury v. Terr. 9 Okl. 398,
60 P 101; Metcalf v. State, 10 Okl.
Cr. 77, 133 P 1130; Weatherholt v.
State, 9 Okl. Cr. 161, 131 P 185;
Walker v. State, (Cr.) 127 P 895;
Bowes v. State, 8 Okl. Cr. 277, 127 P
883; Wishard v. State, 5 Okl. Cr. 610,
115 P 796; Moore v. State, 4 Okl. Cr.
212, 111 P 822; Greenwood v. State, 3
Okl. Cr. 247, 105 P 371; Cox v. State,
3 Okl. Cr. 129, 104 P 1074, 105 P 369;
Sturgis v. State, 2 Okl. Cr. 362, 102
P 57.

Or.-State v. Lewis, 51 Or. 467, 94 P 831; State v. Branton, 33 Or. 533, 56 P 267; State v. Hinkle, 33 Or. 93, 54 P 155; State v. Steeves, 29 Or. 85, 43 P 947; State v. Moran, 15 Or. 262, 14 P 419.

Pa.-Brandt v. Com., 94 Pa. 290;
Campbell v. Com., 84 Pa. 187; Com.
v. Bradley, 16 Pa. Super. 561; Com.
v. Hughes, 11 Phila. 430.

Porto Rico.-Peo. v. Paz, 12 Porto
Rico 98.

R. I.-State v. Sprague, 4 R. I.
257.

S. C.-State v. Green, 35 S. C. L. 128 note.

S. D.-State v. Phelps, 5 S. D. 480,
59 NW 471.

Wash.-State v. Wappenstein, 67
Wash. 502, 121 P 989; State v. Beebe,
66 Wash. 463, 120 P 122; State v.
McFadden, 48 Wash. 259, 93 P 414, 14
LRANS 1140.

Eng. Reg. v. James, 24 Q. B. D.
439; Reg. v. Manning, 2 C. & K. 903
note, 61 ECL 903 note. See also Reg.
v. Munday, 2 F. & F. 170.

Que. Reg. v. Campbell, 2 CanCr
Cas 357, 8 Que. Q. B. 322.

See also Indictments and Informa-
tions [22 Cyc 361].

"The effect of this provision is to make the offense of one who, at common law, would have been an accessory before the fact, substantive, and so far independent that he may be indicted, tried, and punished, and as a principal, without regard to the prosecution of the person who, at common law, would have been the principal." State v. Smith, 100 Iowa 1, 4, 69 NW 269.

[a] Such a statute is applicable to a felony created by statute after its passage. State v. Elliott, 61 Kan. 518, 59 P 1047.

[b] Where the accused is extradited as an accessary before the fact and is subsequently indicted in the state as principal under state statutes authorizing the indictment, etc., of accessaries before the fact as principals, he is not being tried for a different offense from that for which he was extradited. In re Rowe, 77 Fed. 161, 23 CCA 103.

[c] Escape.-A prisoner serving a life term in the penitentiary may be a principal under Pen. Code § 31, in the felony of attempting to escape on the part of another prisoner serving a term of less than life, where the former aids in such attempt. Peo. v. Ceeks, 170 Cal. 368, 149 P 821.

7. Hanoff v. State, 37 Oh. St. 178,

8. McCracken v. Peo., 209 Ill. 215, 70 NE 749; Hronek v. Peo., 134 III. 139, 24 NE 861, 23 AmSR 652, 8 LRA 837; Spies v. Peo., 122 Ill. 1, 12 NE 865, 17 NE 898, 3 AmSR 320; Croates v. Peo., 72 Ill. 303; Dempsey v. Peo., 47 Ill. 323; Brennan v. Peo., 15 Ill. 511; Baxter v. Peo. 8 Ill. 368.

9. Peo. v. Fitzgerald, 156 N. Y. 253, 50 NE 846; Peo. v. Pisano, 142 App. Div. 524, 127 NYS 204; Peo. v. Mills, 91 App. Div. 331, 86 NYS 529; 18 N. Y. Cr. 125 [aff 178 N. Y. 274. 70 NE 786, 67 LRA 131]; Peo. v. Bosworth, 64 Hun 72, 19 NYS 114.

"Before the adoption of the Code, and in cases of felony, there would have been no doubt that a conviction could not be had upon an indictment such as this, where the proof was the same as in this case. It is claimed, however, that section 29 of the Penal Code works a change in the law upon this subject. That section is as follows: 'A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime, is a principal.' It is now argued that by reason of this section the rule of law has been changed, and that upon an indictment alleging that the defendant committed the crime named in the indictment, he may be convicted upon proof that, though absent, he advised and procured its commission. The purpose and effect of the section are to abolish the distinction which heretofore existed in cases of felony between a principal and an accessory before the fact, the principal being present and either committing the act himself or aiding in its commission, and the accessory before the fact being absent but counseling and procuring its commission. The case of an accessory before the fact has now, by means of this section, been made the case of a principal, and he occupies, therefore, the same position in the case of felony as such an individual heretofore occupied in cases of treason and of misdemeanor." Peo. v. Bliven, 112 N. Y. 79, 82, 19 NE 638, 8 AmSR 701.

10.
11.

See cases infra note 11.

Peo. v. Bunkers, 2 Cal. A. 197, 84 P 364, 370; State v. Wappenstein, 67 Wash. 502, 121 P 989.

12. State v. Lingafelter, 77 Oh. St. 523, 529, 83 NE 897 (where the court said: "Whenever and wherever the legislature has deemed it necessary to penalize the acts of one which are done or performed after the commission of the principal offense, it has enacted statutes to meet the case. and such acts are made, a substantive offense as distinguished from the relation of accessory after the fact as recognized at common law, as in cases for receiving stolen goods and the like").

13. See infra § 125.

14. Strong v. State, 52 Tex. Cr. 133, 105 SW 785. See infra § 134.

a crime, although he or she is incompetent to commit the crime in person.15 In order that this may be true, however, there must of course be a crime committed and a principal in the first degree.16 It has been held in such circumstances therefore that the acquittal of the alleged principal in the first degree demands the acquittal of the alleged aider and abettor.17 It will be shown subsequently who may be an accessary after the fact.18

[§ 105] 4. In Offenses Which May Be Committed by One Only. There may be several participants in a crime which from its nature can be committed actually by only one.19

[106] 5. Relation of Principal and Agent or Master and Servant. The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent's authority has no application to criminal law.20 Therefore, the mere relation of principal and agent or of master and servant does

Ga.-Bishop v. State, 118 Ga. 799, 45 SE 614; Boggus v. State, 34 Ga. 275.

Iowa. State v. Rowe, 104 Iowa 323, 73 NW 833; State v. Comstock, 46 Iowa 265.

Kan.-State v. Elliott, 61 Kan. 518, 59 P 1047; State v. Boyland, 24 Kan. 186.

not render the principal or master criminally liable for the acts of his agent or servant, although done in the course of his employment; it must be shown that they were directed or authorized by him.21 Moreover a clear case must be shown.22

Ratification of an unauthorized act of an agent will not render the principal criminally liable for the act, although the ratification makes him civilly liable.23

[107] B. Principals in First Degree-1. In General. The principal in the first degree is he that is the actor or actual and immediate perpetrator of the crime, and this is true of course whether the crime is a felony or a misdemeanor;24 but two persons may be the actual perpetrators of a crime so as to render each a principal in the first degree.25 One may commit a crime as principal in the first degree without being actually present, as where he places poison for another, who takes it in his abhaving any personal knowledge of the condition of such mules, is responsible for acts of cruelty committed by such employees upon such animals in the course of the employment and with the apparent authority of the owner).

15. U. S.-U. S. v. Snyder, 8 Fed. | 45 SE 614. (4) One not a public 805, 3 McCrary 377, 14 Fed. 554, 4 officer who aided and abetted a pubMcCrary 618; U. S. V. Bayer, 24 lic officer in committing embezzleF. Cas. No. 14,547, 4 Dill. 407. ment. State v. Rowe, 104 Iowa 323, Conn.-State V. Burns, 82 Conn. 73 NW 833. (5) One who aided and 213, 72 A 1083, 16 AnnCas 465. abetted a bankrupt in committing the offenses punished by the Bankrupt Act. U. S. v. Bayer, 24 F. Cas. No. 14,547, 4 Dill. 407. (6) One who aided and abetted a postmaster in making a false return in violation of the act of June 30, 1879. U. S. v. Snyder, 8 Fed. 805, 3 McCrary 377, 14 Fed. 554, 4 McCrary 618. (7) One who was not a member of a board of registry, but who induced or procured a member of such board willfully to violate a provision of the election law in relation to the registration of voters. Peo. v. McKane, 143 N. Y. 455, 38 NE 950. (8) A woman who aided and abetted one in the violation of a statute punishing the impersonating of a seaman. Rex v. Potts, R. & R. 262. (9) Other applications of the rule see Adultery § 20; Bigamy [5 Cyc 692 text and note 18]; Rape [33 Cyc 1436 text and notes 69-72]; Suicide [37 Cyc 521]. Accessary before the fact see infra §§ 125-133.

18.

Ky.-Kessler

V. Com., 12 Bush

La-State v. Haines, 51 La. Ann. 731, 25 S 372, 44 LRA 837; State v. Williams, 32 La. Ann. 335, 36 AmR 272.

Mass.-Com. v. Fogerty, 8 Gray 489, 69 AmD 264.

Mich.-Peo. v. Chapman, 62 Mich. 280, 28 NW 896, 4 AmSR 857; Strang v. Peo., 24 Mich 1; Shannon v. Peo., 5 Mich. 71.

Mo.-State v. Gow, 235 Mo. 307, 325, 138 SW 648 [cit Cyc].

N. Y.-Peo. v. Peckens, 153 N. Y. 576, 47 NE 883; Peo. v. McKane, 143 N. Y. 455, 38 NE 950.

N. C.-State v. Dowell, 106 N. C. 722, 11 SE 525, 19 AmSR 568, 8 LRA 297; State v. Jones, 83 N. C. 605, 35 AmR 586.

Oh.-Brown

496.

v. State, 18 Oh. St.

Or-State v. Case, 61 Or. 265, 122 P 304 (adultery).

R. I.-State v. Sprague, 4 R. I. 257 (holding that a person other than the mother of a bastard child, although he or she could not be guilty under the statute of concealing the birth of such child, might be convicted of aiding, abetting, counseling, or procuring the commission of the offense by the mother).

S. C.-State v. Posey, 35 S. C. L. 103; State v. Simmons, 3 S. C. L. 6. Tex.-Campbell v. State, 63 Tex. Cr. 595, 141 SW 232, AnnCas1913D 858.

Va.-Law v. Com., 75 Va. 885, 40 AmR 750.

Eng.-Rex v. Baltimore, 4 Burr 2179, 98 Reprint 136; Reg. v. Ram, 17 Cox C. C. 609; Rex. v. Audley, 3 How. St. Tr. 401; Rex. v. Morris, 2 Leach C. C. 525; Rex. v. Potts, R. & R. 262, 1 Hale P. C. p 629; 1 Hawkins P. C. c 41 § 10.

[a] Rule applied to: (1) A husband who aided his wife in the commission of a felony. Rex v. Morris, 2 Leach C. C. 525. (2) An unmarried man who aided and abetted a married man to commit bigamy, although he being unmarried could not be guilty of the crime as principal in the first degree. Boggus v. State, 34 Ga. 275. (3) One, not an officer of a corporation, who aided in the crime of embezzlement of corporate funds by a corporate officer. Bishop v. State, 118 Ga. 799,

Principal in second degree see infra §§ 112-124.

16. In re Cooper, 162 Cal. 81, 121 P 318; Ex p. Sullivan, 17 Cal. A 278, 119 P 526.

17. State v. Haines, 51 La. Ann. 731, 25 S 372, 44 LRA 837 (where a husband was charged as aider and abettor in rape of his wife); Reg. v. Skelton, 3 C. & K. 119; Reg. v. Wa terage, 1 Cox C. C. 338.

18. See infra §§ 133-147.

19. State v. Berger, 121 Iowa 581, 96 NW 1094; State v. Comstock, 46 Iowa 265.

20. Peo. v. Green, 22 Cal. A. 45, 133 P 334: Com. v. Stevens, 155 Mass. 291; 29 NE 508; Cox v. State, 3 Okl. Cr. 129, 104 P 1074, 105 P 369; Sturgis v. State, 2 Okl. Cr. 362, 102 P 57; State v. Henaghan, 73 W. Va. 706, 81 SE 539.

[a] Three cases in which liability attaches.-A principal is liable for the violation of the criminal law by his agent only in three cases namely, first, where the agent acts directly under the principal's command; second, where the agent, although without specific instructions, is acting at the time within the scope of his employment; and third, where the act is done for defendant by his knowledge or consent. Prater v. Com., 4 KyL 344.

[b] Complicity necessary. To render a principal criminally liable for an act of his agent, committed in the absence of the principal, there must be some sort of complicity. Ollre v. State, 57 Tex. Cr. 520, 123 SW 1116.

[c] A shopkeeper is liable criminally for an unlawful sale in his shop, made with his assent, by a servant or agent employed in his business. But an unlawful sale by the servant or agent is only prima facie evidence of the assent thereto by the shopkeeper, and of his liability to punishment therefor. Com. v. Nichols, 10 Metc. (Mass.) 259, 43 AmD 432. See also Com. v. Park, 1 Gray (Mass.) 553.

[d] Concealing master's offense.A master has been held liable for the acts of his servant in attempting to conceal the fact that the master was in the wrongful possession of smuggled goods. Atty.-Gen. v. Siddon. 1 Cromp. & J. 220, 148 Reprint 1400.

22. Peo. v. Green, 22 Cal. A. 45, 133 P 334.

23. Cook v. Com., 141 Ky. 439, 132 SW 1032. V. State, 41

24. Ark.-Williams Ark. 173.

Ga.-Collins v. State, 88 Ga. 347, 14 SE 474; Hately v. State, 15 Ga.

21. Ariz.-Grant Bros. Constr. Co.
v. U. S., 13 Ariz. 388, 114 P 955.
Cal.-Peo. v. Green, 22 Cal. A 45, 346.
133 P 334.

Ga. Hately V. State, 15 Ga.
346.

Ind.-Hipp v. State, 5 Blackf. 149,
33 AmD 463.

Mass.-Com. v. Stevens, 155 Mass.
291. 29 NE 508; Com. v. Holmes, 119
Mass. 195. Com. v. Park, 1 Gray 553;
Com. v. Nichols, 10 Metc. 259, 43
AmD 432.

But compare State v. Pennsylvania
R. Co., 84 N. J. L. 550, 87 A 86 (hold-
ing that the fact that a smoke nuis-
ance may have been caused by a rail-
road company's employees without
authority cannot release the company
from liability to prosecution there-
for); Wood v. State, 30 Oh. Cir. Ct.
255 (holding that the owner of mules
driven by his employees without his

Kan.-State v. Cassady, 12 Kan.

550.

Mass.-Com. v. Knapp, 9 Pick. 496, 20 AmD 491.

Mich.-Peo. v. Soule, 74 Mich. 250, 41 NW 908, 2 LRA 494.

Tenn.-Pierce v. State, 130 Tenn. 24, 168 SW 851, AnnCas1916B 137. Eng.-4 Blackstone Comm. p 34; 1 Chitty Cr. L. p 255; 1 Hale P. C. p 615.

25. Roney v. State, 76 Ga. 731 (murder); State V. Adam, 105 La. 737. 30 S 101 (larceny); U. S. V. Romero, 22 Philippine 565 (robbery). [a] Gaming.-Each person who takes part in the game is guilty of separate offense and is responsible for his individual act. Com. v. Jones, 10 Ky. Op. 320.

26

sence, 20 or where he obtains money by false pre-
tenses by sending a letter through the mail,27 and
where several persons are acting together with a
common intent and design to commit a crime, and
each performs some part of the crime, they are all
guilty as principals, although all are not actually
present when the offense is finally consummated.28
They are present in the eye of the law at the place
of the crime where each and all in their own sta-
tion coöperate to a common end.29 This rule has
been applied where several combined to forge an
26.
State v. Fulkerson, 61 N. C.
233; Blackburn v. State, 23 Oh. St.
146; Rex. v. Harley, 4 C. & P. 369,
19 ECL 558; 3 Coke Inst. p 138; Fos-
ter Cr. L. p 349.

27. Peo. v. Adams, 3 Den. 190, 45 AmD 468 [aff 1 N. Y. 173, How. A. Cas. 365]; Reg. v. Jones, 4 Cox C. C.

198.

N. Y.-McCarney v. Peo. 83 N. Y. 408, 38 AmR 456.

N. C.-State v. Holder, 153 N. C. 606, 69 SE 66.

Oh.-Breese v. State, 12 Oh. St. 146, 80 AmD 340; Hess v. State, 5 Oh. 12, 22 AmD 767.

Okl.-Lancaster V. State, 2 Okl. Cr. 681, 103 P 1065.

Tex.-Gilbert v. State, (Cr.) 186 SW 324; Silvas v. State, (Cr.) 159 SW 223; Bass v. State, 59 Tex. Cr. 186, 127 SW 1020; Tittle v. State, 35 Tex. Cr. 96, 31 SW 677; McDonald v. State, 34 Tex. Cr. 556, 35 SW 286; Trimble v. State, 33 Tex. Cr. 397, 26 SW 727; Phillips v. State, 26 Tex. A. 228, 9 SW 557, 8 AmSR 471; Blain v. State, 24 Tex. A. 626, 7 SW 239; Watson v. State, 21 Tex. A. 598, 1 SW 451, 17 SW 550 (making preparation to slaughter hogs to be stolen); O'Neal v. State, 14 Tex. A. 582; Cook v. State, 14 Tex. A. 96; Scales V. State, 7 Tex. A. 361; Berry v. State, 4 Tex A. 492; Wells v. State, 4 Tex. A. 20; Welsh v. State, 3 Tex. A. 413. Eng. Reg. v. Whittaker, 2 C. & K. 63C, 61 ECL 636; Reg. v. Kelly, 2 C. & K. 379, 61 ECL 379; Reg. v. Charles, 17 Cox C. C. 499; Reg. v. Howell, 9 C. & P. 437, 38 ECL 259; Reg. v. Sheppard, 9 C. & P. 121, 38 ECL 82; Rex. v. Jordan, 7 C. & P. 432, 32 ECL 693; Rex v. Lockett, 7 C. & P. 300, 32 ECL 624; Rex v. Bingley, R. & R. 332 (forgery); Rex v. Standley, R. & R. 226; 1 Hale P. C. p 439.

[a] Thus, where several persons threw stones at a train at the same time and place, they were each liable without proof of a conspiracy, although some of them threw stones at one car and some at another, for proof of conspiracy is necessary only to fix liability on members of a mob who are present, but not shown to have committed the illegal act complained of. State v. Holder, 153 N. C. 606, 69 SE 66.

[b] If two or more persons confederate to break open a store in the night season and steal the goods therein, and it is agreed between them, in order to facilitate the burglary and lessen the danger of detection, that one of them shall, on the night agreed on, entice the owner to a house a mile distant from the store and detain him there, while the others break into the store and remove the goods, and the confederates perform their respective parts of the agreement, the person who thus entices the owner away and detains him is deemed to be constructively present at the burglary, and may be indicted as a principal offender. Breese v. State, 12 Oh. St. 146, 80 AmD 340.

[c] Texas authorities reviewed.—

instrument and each executed by himself a distinct part of the forgery and they were not together when the instrument was completed.30

[108] 2. Commission of Crime by Agent-a. Innocent Agent. If a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime, and punishable accordingly, although he was not present at the time and place of the offense, as is ordinarily required to render one guilty as a principal.31 As between him and the innocent agent, there is no offender, because he was engaged at the time of the theft in performing his part in the consummation of the conspiracy to steal and dispose of them. In Scales v. State, 7 Tex. A. 361, part of the conspirators were to steal the horses in question, whilst the rest were to get up provisions and an outfit to enable them all jointly to take the horses to Fort Elliott and sell them. (See statement in McKeen v. State, 7 Tex. A. 631.) They were all held principal offenders because doing their separate parts and acting together in consummating the conspiracy. In McCampbell v. State, 9 Tex. A. 124, 35 AmR 726, it is said: 'If the facts should show an actual participancy by appellant in the original fraudulent taking, a conviction may be sustained for the offense charged although the appellant may not have been personally present at such taking.' In Cohea v. State, 9 Tex. A. 173, it is said: 'He need not be actually present at the taking, if the act was committed in pursuance of a common intent and a previously formed design where the mind united and concurred with that of the actual taker.'" Smith v. State, 21 Tex. A. 107, 123, 17 SW 522.

Reviewing the authorities in that
state, the court said: "We believe
that the distinction drawn by us be-
tween principal offenders and accom-
plices as known to our code has
been as clearly and accurately stated,
as we are able to present it, in the
cases of Cook v. State, 14 Tex. A. 96,
and Bean v. State, 17 Tex. A. 61. In
the former case it is said: 'We are
of opinion that the proper distinc-
tion between these two characters of
offenders is this: The acts constitut-
ing an accomplice are auxiliary only,
all of which may be and are per-
formed by him anterior and as in-
ducements to the crime about to be
committed; whilst the principal of-
fender not only may perform some
antecedent act in furtherance of the
commission of the crime but, when
it is actually committed, is doing his
part of the work assigned him in
connection with the plan and fur-
therance of the common purpose,
whether he be present where the
main fact is to be accomplished or
not. Where the offense is committed
by the perpetration of different parts
which constitute one entire whole, it
is not necessary that the offenders
should be in fact together at the
perpetration of the offense, to ren-
der them liable as principals. In
other words, an accomplice under our
statute is one who has completed his
offense before the crime is actually
committed, and whose liability at-
taches after its commission by vir-
tue of his previous acts in bringing
it about through the agency or in
connection with third parties. The
principal offender acts his part in-
dividually in furtherance of and dur-
ing the consummation of the crime.'
In Bean v. State, 17 Tex. A. 61, it
is said: "The dividing line between
the two is the commencement of the
commission of the principal offence.
If the parties acted together in the
commission of the offense, they are
principals. If they agreed to com-
mit the offense together, but did not
act together in its commission, the
one who actually committed it is
the principal, while the other, who
is not present at the commission,
and who was not in any way aiding
in its commission, as by keeping
watch or by securing the safety or
concealment of the principal, would
be an accomplice. To constitute a
principal, the offender must either be
present where the crime is commit-
ted or he must do some act during
the time when the offense is being
committed which connects him with
the act of commission in some of the
ways named in the statute. Where
the acts committed occur prior to
the commission of the principal of-
fense, or subsequent thereto, and are
independent of, and disconnected
with, the actual commission of the
principal offense, and no act is done
by the party during the commission
of the principal offense, such a party
is not a principal offender, but is an
accomplice or an accessory according
to the facts.' In Welsh v. State, 3
Tex. A. 413, where the employer or-
dered his servants to take all the
cattle they could find, and that in
the meantime he would go ahead and
make arrangements to ship or sell
them, he was held to be a principal

29. See cases supra note 28. 30. Griffin v. State, 26 Ga. 493; Rex v. Dade, 1 Moody C. C. 307; Rex v. Kirkwood, 1 Moody C. C. 304; Rex v. Bingley, R. & R. 332.

31. U. S.-Richardson v. U. S., 181 Fed. 1, 104 CCA 69.

Ala.-Johnson v. State, 142 Ala. 70, 38 S 182, 2 LRANS 897; Bishop v. State, 30 Ala. 34.

D. C.-Maxey v. U. S., 30 App. 63. Ga.-Edwards v. State, 80 Ga. 127, 4 SE 268; Hately v. State, 15 Ga. 346; Berry v. State, 10 Ga. 511.

Il-Lake Shore, etc., R. Co. v. Goldberg, 2 Ill. A. 228.

Ind.-Seifert v. State, 160 Ind. 464, 67 NE 100, 98 AmSR 340; McKee v. State, 111 Ind. 378, 12 NE 510.

Me.-State v. Shurtliff, 18 Me. 368. Mass.-Com. v. White, 123 Mass. 430, 25 AmR 116; Com. v. Hill, 11 Mass. 136 (passing a counterfeit bill). Mich.-Peo. v. Kowalski, 179 Mich. 368, 146 NE 177.

N. Y.-Peo. v. Lyon, 99 N. Y. 210. 1 NE 673; McCarney V. Peo., 83 N. Y. 408, 38 AmR 456; Adams v. Peo.. 1 N. Y. 173; Peo. v. McMurray, Sheld. 563, 4 Park. Cr. 234; Peo. v. Hall, 57 How Pr 342; Peo. v. Katz. 23 How Pr 93; Peo. v. Adams, 3 Den. 190, 45 AmD 468 [aff 1 N. Y. 173, How. A. Cas. 365]; Wixson v. Peo., 5 Park. Cr. 119.

Oh.-Gregory v. State, 26 Oh. St. 510, 20 AmR 774.

Or. State v. Barnett, 15 Or. 77, 14
P 737.
Pa.-Com. v. Seybert, 4 Pa. Co. 152.
S. C.-State v. Westfield, 17 S. C.
L. 132.

Tenn.-Collins v. State, 3 Heisk. 14. Tex-Farris v. State, 55 Tex. Cr. 481, 117 SW 798, 131 AmSR 824; Dent v. State, 43 Tex. Cr. 126, 65 SW 627; Willingham v. State. 33 Tex. Cr. 98, 25 SW 424; Doss v. State, 21 Tex. A. 505, 2 SW 814, 57 AmR 618.

Vt.-State v. Learnard, 41 Vt. 585. W. Va.-State v. Bailey, 63 W. Va. 668, 60 SE 785.

Eng. Reg. v. Butcher, Bell C. C. 6;