*AIDERS, ACCESSARIES, &c.

[*213]

Proof with regard to aiders and abettors

213

What presence is sufficient to make a party a principal in the second degree
Punishment

213

214

Under this head will be considered the evidence against aiders, or principals in the second degree, against accessaries before the fact, and accessaries after the

fact.

Proof with regard to aiders and abettors.] Although the law on the subject was formerly not well settled, it is now clear that all those who are present, aiding and abetting, where a felony is committed, are principals in the second degree. 1 Russ. by Grea. 26; Coalheaver's case, 1 Leach, 66; Foster, 428.

With regard to the nature of the felony, it has been held that the rules with regard to principals in the second degree, apply equally to felonies created by statute, as to those offences which are felonies at common law. Tattersall's case, 1 Russ.

by Grea. 27.

Where a count in an indictment charged A. with the murder of B., and C. and D. with being present, aiding and abetting in the commission of the murder, and it appeared that A. was insane, it was held that C. and D. could not be convicted on that count. Tyler's case, 8 C. & P. 616.*

Proof with regard to aiders and abettors-what presence is sufficient to make a party a principal in the second degree.] With regard to what will constitute such a presence as to render a man a principal in the second degree, it is said by Mr. Justice Foster, 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 to prevent a surprise, or to favor, 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. Foster, 350. Thus where A. waits under a window, while B. steals articles in the house, which he throws through the *window to A., the latter is a principal in the offence. Owen's case, 1 [*214] Moody, C. C. 96,' stated post.

There must be a participation in the act, for although a man be present whilst a felony is committed, if he takes no part in it and do not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or apprehend the felon. Í Hale, 439; Foster, 350.

So a mere participation in the act, without a felonious participation in the design, Eng. C. C. 966.

Eng. Com. Law Reps. xxxiv. 553.

b

will not be sufficient. 1 East, P. C. 257; Plumer's case, Kel. 109. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 1 Hale. 466.

Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger 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. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony at all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain; for they could not justify the breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance of opportunity of stealing, whereupon some of them did lay hands. Anon. 1 Leach, 7, (n.) 1 Russell by Grea. 29. See also White's case, R. & R. 99; Hawkin's case, C. & P. 392, post.

3

Either an actual presence, or such a presence as may be sufficient to afford aid and assistance to the principal in the first degree is necessary, in order to render a party guilty as a principal in the second degree.(1) See Soare's case, Russ. & Ry. 25; Davis's case, Id. 113; Else's case, Id. 142;' Badcock's case, Id. 249; King's case, Id. 332; M'Makin's case, Id. 333, (n.); Kelley's case, Id. 421;j Stewart's case, Id. 363,* all stated post.

Where circumstances will render a party liable as a principal in particular offences, will be found stated in the subsequent part of this work.

Aiders and abettors-trial and punishment.] Aiders and abettors were formerly defined to be accessaries at the fact, and could not have been tried until the principals had been convicted or outlawed. Foster, 347. But it has been long settled, that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty, 2 Hale, 223, and may be convicted, though the party charged as principal in the first degree is acquitted. Taylor's case, 1 Leach, 360; Benson v. Offley, 2 Show. 510; 3 Mod. 121; Wallis's case, Salk. 334; Towle's case, R. & R. 314; 3 Price, 145; 2 Marsh. 465.

(1) The abettor must be in a situation actually to render aid, not merely where the perpetrator supposed he might.

Proof of a prior conspiracy is not legal presumption of having aided, but only evidence. But if a conspiracy be proved, and a presence in a situation to render aid, it is a legal presumption that such presence was with a view to render aid, and it lies on the party to rebut it, by showing that he was there for a purpose unconnected with the conspiracy. Commonwealth v. Knapp, 9 Pick. 496.

One who is present and sees that a felony is about to be committed, and does in no manner interfere, does not thereby participate in the felony committed. It is necessary, in order to make him an aider or abettor, that he should do or say something showing his consent to the felonious purpose, and contributing to its execution. State v. Hildreth, 9 N. Carolina, 440.

Eng. Com. Law Reps. xiv. 365.
Id. 249.
Id. 363.

1 Id. 142.

Id. 332.

1 Eng C. C. 25.
i Id. 333.
1 Id. 314.

• Id. 113. ¡ Id. 421.

*Where a statute creates a felony, and punishes with death persons [*215] guilty thereof, without taking provision as to persons present aiding and abetting, principals in the second degree, are thereby punishable with death as well as principals in the first degree. Midwinter's case, Fost. App. 415. Coalheaver's case, 1 Leach, 66. So where a statute makes a common law, felony by name, punishable with death, as in the case of murder, &c., those present aiding and abetting in the offence are impliedly punishable with death, although the statute makes no mention of them. 1 Hale, 537; Fost. 359. Where, however, a statute imposes the punishment of death upon the person committing the offence, and not upon the offence by name, those present aiding and abetting merely are not punishable with death, the person only who actually committed the offence being deemed to be within the act. Fost. 356, 357; Paget's case, Fost. 355. But in this latter case, if the accessary be expressly within the statute as well as the party actually committing the offence, it must be deemed by necessary implication virtually to include the principal in the second degree. See Gorgely's case, R. & R. 343.m

This was the rule upon the construction of statutes before the abolition of the benefit of clergy, and it is still applicable, because by the 7 & 8 Geo. 4, c. 28, s. 7, no person can be punished with death unless it be for some felony, which was before excluded from the benefit of clergy, or made punishable with death by some subsequent statute. But this rule is now of less general importance, because the various statutes upon which these questions have arisen have been repealed. For the punishment of principals in the second degree under the modern statutes consolidating the law, which include the offences of most general occurrence, see post, p. 219. See further Archb. C. L. 679, 10th ed.

Considerable doubts formerly existed with regard to the punishment of aiders and abettors, but by the 7 & 8 Geo. 4, c. 29, s. 61, in the case of felonies punishable under that act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree is by that act punishable. And by the 7 & 8 Geo. 4, c. 30, s. 26, in the case of every felony punishable under that act, every principal in the second degree is punishable with death, or otherwise in the same manner as a principal in the first degree is by that act punishable. Manners's case, 7 C. & P. 801." Young's case, 8 C. & P. 644. See further, post, 219.

Proof with regard to accessaries before the fact.] An accessary before the fact, is defined by Lord Hale to be one who, being absent at the time of the offence committed, does yet procure, counsel, command or abet another to commit a felony. 1 Hale, P. C. 615. The bare concealment of a felony to be committed, will not make the party concealing it an accessary before the fact. 2 Hawk. c. 29, S. 23. So words amounting to a bare permission will not render a man an accessary, as if A. says he will kill J. S., and B. says, "you may do your pleasure for me." Hawk. P. C. b. 2, c. 29, s. 16.

The procurement must be continuing; for if before the commission of the offence by the principal, the accessary countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as accessary. 1 Hale, P. C. 618. If the party was present when the offence was committed, he is not an *accessary, and if indicted as such, [*216 ] he must be acquitted, but he may be subsequently indicted as a principal in the second degree. Gordon's case, 1 Leach, 515; 1 East, P. C. 352.

Several persons may be convicted on a joint charge against them as accessaries - Eng. C. C. 343.

Eng. C. L. Reps. xxxii. 743.

• Id. xxxiv. 564.

before the fact to a particular felony, though the only evidence against them is of separate acts done by each at separate times and places. Barber's case, 1 C. & K. 442.P

Proof with respect to accessaries before the fact by the intervention of a third person.] A person may render himself an accessary by the intervention of a third person, without any direct communication between himself and the principal. Thus if A. bids his servant to hire somebody to murder B., and furnish him with money for that purpose, and the servant hires C., a person whom A. never saw or heard of, who commits the murder, A. is an accessary before the fact. Macdaniel's case, Fost. 125; Hawk. P. C. b. 2, c. 29, ss. 1, 11; 1 Russ. by Grea. 32; Cooper's case, 5 C. & P. 535.1

Proof with regard to accessaries before the fact-degree of incitement.] Upon the subject of the degree of incitement and the force of persuasion used, no rule is laid down. That it was sufficient to effectuate the evil purpose is proved by the result. On principle, it seems that any degree of direct incitement, with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessary; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been committed, although the incitement had never taken place. 2 Stark. Ev. 8, 2d ed.

Proof with regard to accessaries before the fact-principal varying from orders given to him.] With regard to those cases where the principal varies, in committing the offence, from the command or advice of the accessary, the following rules are laid down by Sir Michael Foster. If the principal totally and substantially varies; if, being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal in substance complies with the command, varying only in the circumstances of time, or place, or manner of execution, in these cases the persons soliciting to the offence, will, if absent, be an accessary before the fact, or if present, a principal. A. commands B. to murder C. by poison; B. does it by sword or other weapon, or by some other means; A. is accessary to this murder, for the murder of C. was the principal object, and that object is effected. So where the principal goes beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such order or advice, will be an accessary to that felony. A. upon some affront given by B. orders his servant to waylay him and beat him. The servant does so, and B. dies of the beating; A. is accessary to this murder. A. solicits B. to burn the house of C.; he does so, and the flames catching the house of D., that is also burnt. A. is an accessary to this felony. The principle in all these cases is, that though the event might be [*217] beyond the original intention of the *accessary, yet as in the ordinary course of things, that event was the probable consequence of what was done under his influence, and at his instigation, he is in law answerable for the offence. Foster, 369, 370; see also 1 Hale, P. C. 617; Hawk. P. C. b. 2, c. 29, s. 18.

(1) When an offence is committed in one state by means of an innocent agent, the employer is guilty as a principal, though he did not act in that state, and was at the time the offence was committed in another. Adams v. The People, 1 Comstock, 173.

Eng. Com. Law Reps. xlvii. 442.

9 Id. xxiv. 444.

Where the principal wilfully commits a different crime from that which he is commanded or advised to commit, the party counselling him will not, as above stated, be guilty as accessary. But whether, where the principal by mistake, commits a different crime, the party commanding or advising him shall stand excused, has been the subject of much discussion. It is said by Lord Hale, that if A. command B. to kill C., and B. by mistake kills D., or else in striking at C. kills D., but misses C.; A. is not accessary to the murder of D., because it differs in the person. 1 Hale, P. C. 617, citing 3 Inst. 51; Saunders' case, Plow. Com. 475. The circumstances of Saunders's case, cited by Lord Hale, were these: Saunders, with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it to her to eat, and the wife having eaten a small part of it, and given the remainder to their child, Saunders making only a faint attempt to save the child, whom he loved and would not have destroyed, stood by and saw it eat the poison, of which it soon afterwards died. It was held that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessary to the murder.

Upon the law as laid down by Lord Hale, and upon Saunders's case, Mr. Justice Foster has made the following observations, and has suggested this case : B. is an utter stranger to the person of C., and A. therefore takes upon himself to describe him by his stature, dress, &c., and acquaints B. when and where he may probably be met with. B. is punctual at the time and place, and D., a person in the opinion of B., answering the description, unhappily coming by, is murdered under a strong belief on the part of B., that he is the man marked out for destruction. Who is answerable? Undoubtedly A.: the malice on his part egreditur personam. The pit, which he, with a murderous intention, dug for C., D. fell into and perished. Through his guilt, B. not knowing the person of C., had no other guide to lead him. to his prey than the description of A., and in following his guide he fell into a mistake, which it is great odds any man in his circumstances might have fallen into, "I therefore," continues the learned writer, "as at present advised, conceive that A. was answerable for the consequences of the flagitious orders he gave, since that consequence appears in the ordinary course of things to have been highly probable." Foster, 370.

With regard to Archer's case, the same learned author observed, that the judges did not think it advisable to deliver him in the ordinary course of justice by judgment of acquittal, but for example's sake, kept him in prison by frequent reprieves from session to session, till he had procured a pardon from the crown. Ibid. 371.

Mr. Justice Foster then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to rest. Did the principal commit the felony he stands charged with, under the flagitious advice, and was the event in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestion of his own wicked heart, wilfully and *knowingly commit a felony of another kind or upon a different subject? [ *218] Foster, 372. See also Hawk. P. C. b. 2, c. 29, s. 22.

Proof with regard to accessaries before the fact-what offences admit of accessaries.] With regard to the particular offences which admit of accessaries, it is held that in high treason there can be no accessaries, but all are principals, every act of incitement, aid, or protection, which in felony would render a man an accessary before or after the fact, in the case of high treason (whether by common law or by statute) making him a principal. Foster, 341; 4 Bl. Com. 35. So in all offences below felony