if principal, then in the first degree; (3) for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.(ƒ)

II. An accessary is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. (4) In considering the nature of which degree of guilt, we will first examine what offences admit of accessaries, and what not; secondly, who may be an accessary before the fact; thirdly, who may be an accessary after it; and lastly, how accessaries, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessaries, and what not. In high treason there are no accessaries, but all are principals: the same acts that make a man accessary in felony making him a principal in high treason, upon account of the heinousness of the crime. (g)(5) Besides, it is to be considered, that the bare intent to commit treason is many times actual treason; as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessaries before the fact; since the *very [*36 advice and abetment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor. (h) In petit treason, murder, and felonies with or without benefit of clergy, (6) there may be accessaries, (7) except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like, which therefore cannot have any accessaries before the fact. (i) (8) So too in petit larceny, and in all crimes under the degree of felony, there are no accessaries either before or after the fact, but all persons concerned therein, if guilty at all, are principals: (k) (9) the same rule hold

(f) 1 Hal. P. C. 617. 2 Hawk. P. C. 315.

(g) 3 Inst. 138.

(h) Foster, 342.

1 Hal. P. C. 613.

(i) 1 Hal. P. C. 615.
(k) 1 Hal. P. C. 613.

a person procures a counterfeit bank note to be passed by an ignorant boy as a true one; or, where one prescribes poison to a patient, which a nurse, ignorant of the nature of the medicine, administers. Commonwealth v. Hill, II Mass. 136, 137 (1814). Reg. v. Michael, 9 Carr. & P. 356, 358 (1840). Reg. v. Mazeau, id. 676, 679 (1840). Reg. v. Clifford, 2 Carr. & K. 201, 204 (1845). Adams v. People, 1 N. Y. 173, 175 (1848). Wixson v. People, 5 Parker Cr. Rep. (N. Y.) 119, 129 (1861). Tut if the agent thus employed is aware of the nature of the act, he is a principal, and his employer, an accessary. Rex v. Stewart, Russ. & Ry. Crown Cas. 270 (1818). People v. McMurray, 4 Parker Cr. Rep. (N. Y.) 234, 236 (1856). Wixson v. People, 5 id. 119, 129 (1861). People v. Katz, 23 How. Pr. Rep. (N. Y.) 93, 96 (1862). An employer is criminally liable for the unlawful acts of his employe, done with his consent. Commonwealth v. Nichols, 51 Mass. (10 Metc.) 259, 262 (1845).

(3) Russell on Crimes, 9 Am. ed. vol. 1, *669. Smith v. State, 21 Tex. App. 107, 131 (1886).

(4) One who has been indicted as a principal cannot be convicted of being an accessary. Able v. Commonwealth, 5 Bush. (Ky.) 698, 701 (1869). But one who has been acquitted of a felony may be convicted as an accessary before the fact in the same felony. State v. Buzzell, 58 N. H. 257, 258 (1878).

(5) Russell on Crimes, 9 Am. ed. (Sharswood) vol. I, *59. It seems doubtful whether the common law doctrine that in treason all are principals, applies to the offence as limited by the constitution of the United States; or whether it is in force, at all, in the several states. See Archbold's Crim. Prac. & Pleading, 8 ed. (Pomeroy) vol. 1, p. 55, note 2, citing U. S. v. Burr, 4 Cranch. 472, 501. Also Bishop's New Crim. Law, 8 ed. vol. 1, 681, p. 414.

(6) This seems to apply merely to felonies, where, by the law, judgment of death ought regularly to ensue. 1 Hale, 618. 1 Burn, 5. The crime of petit treason is now abolished. -CHITTY.

(7) Bishop's New Crim. Law, 8 ed. vol. 1, 2 681, p. 414.

(8) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *33, *39.

(9) Wharton's Crim. Law, 10 ed. (Lewis) vol. 1, 223 p. 240. N. Y. Penal Code,

ing with regard to the highest and lowest offences, though upon different reasons. In treason all are principals propter odium delicti;(10) in trespass all are principals because the law, quæ de minimis non curat,(11) does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim that accessorius sequitur naturam sui principalis:(l)(12) and therefore an accessary cannot be guilty of a higher crime than his principal: being only punished as a partaker of his guilt. (13) So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessary only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petit treason, and the stranger of murder. (m)

2. As to the second point, who may be an accessary before the fact; Sir Matthew Hale(n) defines him to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. (14) Herein absence is necessary to make him an accessary; (15) for if such procurer, or the like, be present, he is guilty of the crime as *37] principal. If A. then advises B. to kill another, and *B. does it in

the absence of A., now B. is principal and A. is accessary in the murder. And this holds even though the party killed be not in rerum natura (16) at the time of the advice given. As if A., the reputed father, advises B., the mother of a bastard child unborn, to strangle it when born, and she does so; A. is accessary to this murder.(0)(17) And it is also settled(p) that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessary before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act is accessary to all that ensues upon that unlawful act; but is not accessary to any act distinct from the other. As if A. commands B. to beat C., and B. beats him so that he dies: B. is guilty of murder as principal, and A. as accessary. (18) But if A. commands B. to burn C.'s

(7) 3 Inst. 139.

(m) 2 Hawk. P. C. 315.

(n) 1 Hal. P. C. 616.

(0) Dyer, 186.
(p) Foster, 125.

31; Curtis v. Knox, 2 Denio (N. Y.) 341, 343 (1845). 361, 368 (1884). State v. Buzzell, 58 N. H. 257, 259 (1878). 365 (1885). Barbour's Crim. Law, 3 ed. vol. 1, *286, p. 608. is now abolished.

Ogle v. State, 16 Tex. App.
Foster v. State, 45 Ark. 361,
The offence of petit treason

(10) [On account of the heinousness of the offence.] (11) [Does not take cognizance of slight matters.] (12) [The accessary follows the condition of his principal.] (13) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *61. (14) Barbour's Crim. Law, 3 ed. vol. 1, *285, p. 606. ed. vol. I, 692, p. 420, note.

Bishop's New Crim. Law, 8

(15) Barbour's Crim. Law, 3 ed. vol. 1, *285, p. 606. Archbold's Crim. Prac. & Pleading, 8 ed. (Pomeroy) vol. 1, p. 63, note. But see contra, Bassett's Crim. Pleading, 2 ed. 20, p. 25.

(16) [In the nature of things-Born.]

(17) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *708, note. Bassett's Crim. Pleading, 2 ed. ? 20, p. 25.

Bar

(18) This must be understood to have reference to a case where the command is to beat violently. I Hale, 442, 443, 444. I East, P. C. 257, 258, 259. Kel. 109, 117.-CHITTY. Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *708, note. Wharton's Crim. Law, 10 ed. (Lewis) vol. 1, 241, p. 258. Wharton on Homicide, 2 ed. 343, p. 281, bour's Crim. Law, 3 ed. vol. 1, *286, pp. 607, 608. Gerrish v. Edson, I N. H. 82, 84 (1817). It is no excuse for one who violates a law that he does so at the command of another, occupying a position of authority as employer, or parent. Commonwealth v. Eggleston, 128 Mass. 408, 409 (1880). Hays v. State, 13 Mo. 246 (1850). Wilcox v. State, 50 Ala. 142, 143 (1874). Curtis v. Knox, 2 Denio (N. Y.) 341, 343 (1845). State v. Bugbee, 22 Vt. 32, 34 (1849).

house, and he, in so doing, commits a robbery; now A., though accessary to the burning, is not accessary to the robbery, for that is a thing of a distinct and unconsequential nature. (q) (19) 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 accessary 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. ()(20)

3. An accessary after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. (s) (21) Therefore to make an accessary ex post facto, (22) it is in the first place requisite that he knows of the felony committed. (t)(23) In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessary. As furnishing him with a horse to escape his *pursuers, money or victuals to support [*38 him, a house or other shelter to conceal him, or open force and violence to rescue or protect him.(u) So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessary to the felony. (24) But to relieve a felon in gaol with clothes or other necessaries is no offence; for the crime imputable to this species of accessary is the hinderance of public justice, by assisting the felon to escape the vengeance of the law. (v)(25) To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law a mere misdemeanor, and made not the receiver accessary to the theft; because he received the goods only and not the

(q) 1 Hal. P. C. 617.

(r) 2 Hawk. P. C. 316.

(8) 1 Hal. P. C. 618.

(t) 2 Hawk. P. C. 319.
(u) 2 Hawk. P. C. 317, 318.
(v) 1 Hal. P. C. 620, 621.

(19) The crime must be of the same complexion, and not on a different object than that to which the agent was instigated. Thus, if A. commands B. to burn a certain house with which he is well acquainted, and he burns another, or to steal a certain horse, and he steals a different one, A. will not be liable to be indicted as accessary to the crimes committed, because, B. acting in contradiction to the commands of A., and that knowingly, it is on his part a mere ineffectual temptation, and the specific crime he planned was never completed. Plowd. 475. Hawk. 6. 2, c. 29, s. 18. 1 Hale, 617. Com. Dig. Justices, T. i Fost. 360.-CHITTY. Russell on Crimes, 9 Am. ed. (Sharswood) vol. I, *62.

(20) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *709.

(21) Archbold's Crim. Prac. & Pleading, 8 ed. (Pomeroy) vol. I, p. 73, note. Barbour's Crim. Law, 3 ed. vol. 1, *289, p. 612. Clark's Crim. Law, % 49, p. 95 (1894). The assistance to a felon, which constitutes accessaryship after the fact, is "such assistance as to some extent shelters the principal from prosecution, as, for instance, where the alleged accessary concealed the principal in his house, or shut the door against his pursuers, until he should have an opportunity of escaping, or took money from him to allow him to escape, or where the principal was in prison, and the accessary, before conviction, bribed the jailer to let him escape, or supplied him with materials for the same purpose, or in any way aided in compassing his escape." Wharton's Crim. Law, 10 ed. (Lewis) vol. 1, 241, p. 258. Russell on Crimes, 9 Am. ed. (Sharswood) vol. I, *64.

(22) [After the fact.]

(23) He must know that the felon is guilty; and it seems to be the better opinion that an implied notice is not sufficient. 1 Hale, 323, 622.-CHITTY. Bishop's New Crim. Law, 8 ed. vol. 1, 693, p. 421. Wren v. Commonwealth, 26 Grattan (Va.) 952, 956 (1875).

(24) Russell on Crimes, 9 Am. ed. vol. 1, *64. Bishop's New Crim. Law, 8 ed. vol. I, 695, P. 423.

(25) Mere suffering a felon to escape, by making no effort to detain him or to notify the authorities, does not constitute one an accessary; nor do acts of charity, which merely relieve and comfort a felon, and do not interfere with his arrest and conviction or assist 1453

BOOK IV.-3.

felon: (w) (26) but now, by the statutes 5 Anne, c. 31, and 4 Geo. I. c. 11(27) all such receivers are made accessaries, (where the principal felony admits of accessaries, )(x) and may be transported for fourteen years; (28) and, in the case of receiving linen goods stolen from the bleaching-grounds, are, by statute 18 Geo. II. c. 27, declared felons without benefit of clergy.(29) In France such receivers are punished with death; and the Gothic constitutions distinguished also three sorts of thieves, "unum qui consilium daret, alterum qui contractaret, tertium qui receptaret et occuleret; pari pænæ singulos obnoxios." (y)(30)

The felony must be complete at the time of the assistance given; else it makes not the assistant an accessary. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessary to the homicide; for, till death ensues, there is no felony committed. (2) (31) But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the

brother, the master his servant, or the servant his master, or even if the *39] husband relieves his wife, who have any of them committed a *felony,

the receivers become accessaries ex post facto. (a)(32) But a femecovert cannot become an accessary by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord. (b)(33)

4. The last point of inquiry is how accessaries are to be treated, considered distinct from principals. And the general rule of the ancient law (borrowed from the Gothic constitutions) (c) is this, that accessaries shall suffer the same

(w) 1 Hal. P. C. 620.

(x) Foster, 73.

(y) Stiernhook, de jure Goth. l. 3, c. 5.

(z) 2 Hawk. P. C. 320.

(a) 3 Inst. 108. 2 Hawk. P. C. 320.
(b) 1 Hal, P. C. 621.

(c) See Stiernhook, ibid.

his escape. Clark's Crim. Law, 8 49, p. 97 (1894). Nor does one become an accessary by receiving back his own stolen goods. Bishop's Crim. Law, 8 ed. ? 694, p. 422.

(26) Bishop's New Crim. Law, 8 ed. vol. I, 8 699, p. 424. Loyd v. The State, 42 Ga. 221, 225 (1871). State v. Hodges, 55 Md. 127, 135 (1880). Ross v. The State, 1 Blackford (Ind.) 390, 391 (1825). In New York, receiving stolen goods is a felony. N. Y. Penal Code, 550.

(27) 5 Anne, c. 31 is repealed by 7 Geo. IV. c. 31, as relating to this subject; and 4 Geo. IV. c. II, as to this offence, is repealed by 7 & 8 Geo. IV. c. 27; and now, by 7 & 8 Geo. IV. c. 29, such receivers may be indicted as accessaries after the fact, or for a substantive felony; and, in the latter case, whether the principal shall or shall not have been previously convicted, or shall not be amenable to justice, and are liable to transportation or imprisonment.-CHITTY. See stat. 24 & 25 Vict. c. 96, 91.

(28) But now, by stat. 7 & 8 Geo. IV. c. 29, s. 54, the receiver of stolen goods may be indicted either as accessary after the fact or for a substantive felony, and is liable to penal servitude (16 & 17 Vict. c. 99) or imprisonment.-STEWART. In some states, by statute, the receiver is made a principal in the crime and not an accessary to it. State v. Ward, 49 Conn. 429, 439 (1881).

(29) By 7 & 8 Geo. IV. c. 29, s. 16, this offence is punishable by transportation for life, or for any term not less than seven years, or by imprisonment not exceeding four years, with public or private whippings for male offenders.-CHITTY. See stat. 24 & 25 Vict. c. 96.

(30) ["He who should plan a robbery, he who should commit it, and thirdly, he who should receive and conceal the stolen goods; each liable to an equal degree of punishment."] (31) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 1, *pp. 66, 710. Barbour's Crim. Law, 3 ed. vol. 1, 33, p. 40. Id. *291, p. 614. Bishop's New Crim. Law, 8 ed. vol. 1, 693, p. 421. Chapman v. People, 39 Mich. 357, 361 (1878). Harrel v. The State, 39 Miss. 702, 705 (1861).

(32) [After the fact.]

(33) Wharton on Homicide, 2 ed. 354, p. 284. Wharton's Crim. Law, 10 ed. (Lewis) vol. I, 243, p. 260. Clark's Crim. Law, 49, p. 97 (1894). Bassett's Crim. Pleading, 28, p. 34.

2 ed.

punishment as their principals: if one be liable to death the other is also liable; (d) as, by the laws of Athens, delinquents and their abettors were to receive the same punishment. (e) (34) Why then, it may be asked, are such elaborate distinctions made between accessaries and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harboring the robber. 2. Because, though by the ancient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessaries after the fact being still allowed the benefit of clergy in all cases, except horse-stealing, (f) and stealing of linen from bleaching-grounds: (g)(35) which is denied to the principals and accessaries before the fact in many cases; as, among others, in petit treason, murder, robbery, and wilful burning.(h)(36) And perhaps if a distinction were constantly to be made between the punishment of principals and accessaries, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater than that of his accomplices by reason of the difference of his punishment. (i) 3. Because formerly no man could be tried as accessary till after the principal was convicted, or at least he must have been tried at the same time with him; (37) though that law is now much altered, as will be shown more fully in its proper place. (38) 4. Because, though a man be indicted as accessary and acquitted, he may afterwards be indicted as principal; for an acquittal of receiving or counseling a felon is no acquittal of the felony itself; but it is matter of some doubt whether, if a man be acquitted as principal, he can be afterwards indicted as accessary before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may

(d) 3 Inst. 188.

(e) Pott. Antiq. b. i. c. 26.

(f) Stat. 31 Eliz. c. 12.

Stat. 18 Geo. II. c. 27.

(h) 1 Hal. P. C. 615.
(i) Beccar. c. 37.

[*40

(34) Russell on Crimes, 9 Am. ed. (Sharswood) vol. 2, *852. Bishop's New Crim. Law, 8 ed. 700, p. 425. Commonwealth v. Anthony, 2 Metcalfe (Ky.) 399, 401 (1859). In most states accessaries after the fact receive lighter penalties than principals. Clark's Crim. Law, 49, p. 97 (1893).

(35) By statute 24 & 25 Vict. c. 94, accessaries before and after the fact may be tried and punished as if they were principal felons. Such criminals may be tried either with their principal or without him, and punished, although the principal has been pardoned. Accessaries to crimes committed in England or Ireland may be tried in any court which has jurisdiction over the principal, and accessaries to felonies committed within the jurisdiction of the admiralty court of those countries, whether begun there and completed elsewhere, or begnn elsewhere and completed there, as if they were committed in the county or place in which such person shall be indicted.

(36) Bishop's New Crim. Law (8 ed.) vol. 1, 2, 708, p. 428.

(37) Simmons v. State, 4 Ga. (Kelly & Cobb) 469, 472 (1848).

(38) The reason for forbidding the trial of an accessary till after the conviction of the principal was the theory that no one could be an accessary unless there was a crime committed; and a crime could not be said to have been committed until it had been judicially announced upon legal investigation; and this investigation could not be had except upon a charge against the perpetrator, as the one best acquainted with the circumstances of the transaction and best qualified to make the proper defence. Whitehead v. State, 4 Humphreys (Tenn.) 278, 282 (1843). By the law at present in England and in many of the states of the union, accessaries both before and after the fact may be convicted, whether the principal has been convicted or even brought to trial or not. It is necessary, however, in some states to prove to the jury the guilt of the principal, before the accessary can be convicted. Simmons v. The State, 4 Ga. 465, 473 (1848).