the murder, is good for (by Holt, C. J.) "though the indictment be against the prisoner for aiding, assisting, and abetting A., who was acquitted, yet the indictment and trial of this prisoner is well enough, for all are principals, and it is not material who actually did the murder."(w) And though anciently the person who gave the fatal stroke was considered as the principal, and those who were present aiding and assisting, only as accessories; yet it has long been settled that all who are present aiding and assisting are equally principals with him who gave the stroke whereof the party died, though they are called principals in the [*707 second degree.(x) So that if A. be *indicted for murder, or manslaughter, and C. and D. for being present and assisting A., and A. appears not, but C. and D. appear, they shall be arraigned; and if convicted shall receive judgment, though A. neither appear nor be outlawed.(y) And if A. be indicted as having given the mortal stroke, and B. and C. as present, aiding and assisting, and upon the evidence it appears that B. gave the stroke, and A. and C. were only aiding and assisting, it maintains the indictment, and judgment shall be given against them all; for it is only a circumstantial variance, and in law it is the stroke of all that were present aiding and abetting.(z)

Where the first count charged Downing as principal in the first degree in the murder of W. Cooper by shooting him with a gun, and Powys as being present aiding and abetting Downing, and the second count charged Powys as principal in the first degree, alleging that he "afterwards" assaulted" the said W. Cooper," &c., and Downing as being present aiding and abetting Powys; and the jury found. both guilty, but added they were not satisfied which of the prisoners fired the gun, but were satisfied that one of them fired the gun, and that the other was present aiding and abetting: it was thereupon submitted that, the prisoners being charged differently in the two counts, the jury must be instructed to find them guilty on one or the other of the counts only; but Coltman, J., thought that, as the evidence equally supported either count, it was not necessary to give any such direction, and therefore told them that if they were satisfied that one of the two fired the gun, and that the other was present aiding and abetting, they were both liable to be found guilty, and the jury returned a general verdict of guilty; and, upon a case reserved, the conviction was held right, for both counts substantially related to the same person killed and to one killing.(a)

Where a count charged Thom with murder, and Tyler and Price with being present aiding and abetting in the commission of the murder, and it appeared that Thom was insane at the time of committing the murder, it was held that Tyler and Price could not be convicted on this count.(b) Where a count charged Tyler and Price as principals in the first degree with a murder, and it appeared that Thom, an insane person, collected a number of persons together, who armed themselves, having a common purpose of resisting the lawfully-constituted authorities, Thom having declared that he would cut down any constables who came against him, and a constable having come with his assistants, and a warrant to apprehend Thom, Thom, in the presence of Tyler and Price, who were two of his party, shot one of the assistants; it was held that the prisoners were guilty of murder as principals in the first degree, and that it was no ground of defence that Thom and his party had no distinct or particular object in view *when they assembled together and armed themselves; because, if their object was to resist all opposers in the [*708 commission of any breach of the peace, and for that purpose the parties assembled together and armed themselves with dangerous weapons, however blank the mind of Thom might be as to any ulterior purpose, and however the minds of the

(w) Rex v. Wallis, Salk. 334; Rex v. Taylor, 1 Leach 360; 1 East P. C. c. 5, s. 121, p. 351. (z) 1 Hale 437; Plow. Com. 100, a.

(y) 1 Hale 437; Plow. Com. 97, 100, Gythin's case.

(z) 1 Hale 438; Plow. Com. 98, a; 9 Co. 67, b; Rex v. Mackally, 1 East P. C. c. 5, s. 121, p. 350; Turner's case, 1 Lew. 177, Parke, B.; Reg. v. Phelps, C. & M. 180 (41 E. C. L. R.). (a) Reg. v. Downing, 1 Den. C. C. 52, Maule, J., diss. See 2 C. & K. 382 (61 E. C. L. R.), for the indictment. Now the proper course in such cases would be simply to allege that the prisoners murdered according to the 24 & 25 Vict. c. 100, s. 6. to principals in the second degree, ante, p. 49, et seq.

See the cases as

(b) Reg. v. Tyler, 8 C. & P. 616 (34 E. C. L. R.), Lord Denman, C. J. Sed quære.

prisoners might be unconscious of any particular object, still, if they contemplated a resistance to the lawfully-constituted authorities of the country, in case any should come against them while they were so banded together, there would be a common purpose, and they would be answerable for anything which they did in the execution of it. (c)

He that counsels, commands, or directs the killing of any person, and is himself absent at the time of the fact being done, is an accessory to murder before the fact.(d) And though the crime be done by the intervention of a third person, he that procures it to be committed is an accessory before the fact; so that if A. bid his servant to hire somebody, no matter whom, to murder B. and furnish him with money for that purpose, and the servant procure C., a person whom A. never saw or heard of, to do it, A. is an accessory before the fact.(e)

If A. advise B. to kill another, and B. does it in the absence of A., in such case B. is principal, and A. is accessory in the murder. And this holds, even though the party killed be not in rerum naturâ at the time of the advice given; so that if a man advise a woman to kill her child as soon as it shall be born, and she kills it when born in pursuance of such advice, he is an accessory to the murder.(ƒ)

It is 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. Thus, if A. commands B. to beat C., and B. beat him so that he dies, A. being absent, B. is guilty of murder as principal, and A. as accessory; the crime having been committed in the execution of a command which naturally tended to endanger the life of another.(g) And à fortiori, therefore, if a man command another to rob any person, and he in robbing kill him, the person giving such command is as much an accessory to the murder, as to the robbery which was directly commanded: and it is also said, that if one command a man to rob another, and he kill him in the attempt but do not rob him, the person giving such command is guilty of the murder, because it was the direct and immediate effect of an act done in execution of a command to commit a felony.(h)

Where an indictment charged certain persons with the murder of N. Batty at Paris, and the prisoner as accessory before the fact, and it appeared that when the Emperor and Empress of the French arrived at the opera-house in the Rue Lapelletier, Paris, the street being full of people, as the carriage approached the entrance two grenades were first thrown and exploded, and a third about a minute afterwards, and that Batty was one of the Gardes de Paris on duty at the time, and *709] that he died of wounds caused by the explosion; Lord Campbell, C. J., after citing 1 Russ. C. & M.,() told the grand jury, "as to the objection that the prisoner could have had no intention that those who were killed by the explosion of the grenades should be put to death, it may be observed that such a question can only arise where the principal does not act in strict comformity with the plans and instructions of the accessory. But here, if the prisoner was privy to the plot, the other persons in throwing the grenades as they did must be considered as having acted strictly in conformity with his plans and instructions, and he is answerable as accessory for the consequences." And after citing 1 Russ. C. & M.,(k) his Lordship added: "The approved text is, was the event alleged to be the crime to which the accused is charged to be accessory, a probable consequence of the act he committed?"()

But if the crime committed be not the direct and immediate effect of the act done in pursuance of the command, or if the act done varies in substance from that which was commanded, the party giving the command cannot be deemed an accessory to the crime. Thus if A. persuade B. to poison C., and B. accordingly

(c) Reg. v. Tyler, Ibid.

(e) Fost. 125.

(d) 1 Hale 435.

(ƒ) 1 Hale 617; 2 Hawk. P. C. c. 28, s. 18; 4 Bla. Com. 37; Dy. 185. (g) 1 Hale 435; 2 Hawk. P. C. c. 29, s. 18; 4 Blac. Com. 37.

(h) 2 Hawk. P. C. c. 29, s. 18.

(i) Ante, p. 57, from "An accessory before the fact" to "accessories before the fact." (k) Ante, p. 62, from "where the principal goes beyond," &c., to "instigation of A." (1) Reg. v. Bernard, 1 F. & F. 240.

but

gives poison to C., who eats part of it, and gives the rest to D., who is killed by it, A. is guilty of a great misdemeanor only in respect of D., is not an accessory to his murder; because it was not the direct and immediate effect of the act done in pursuance of the command.(m) And if A. counsel or command B. to beat C. with a small wand or rod, which would not in all human reason cause death, and B. beat C. with a great club, or wound him with a sword, whereof he dies, it seems that A. is not accessory; because there was no command of death, nor of anything that could probably cause death; and B. departed from the command in substance, and not in circumstance.(n) But if the crime committed be the same in substance with that which was commanded, and vary only in some circumstantial matters; as where a man advises another to kill a person in the night, and he kills him in the day; or to kill him in the fields, and he kills him in the town; or to poison him, and he stabs or shoots him; the person giving such command is still accessory to the murder; for the substance of the thing commanded was the death of the party killed, and the manner of its execution is a mere collateral circumstance.(0)

An accessory after the fact, in murder, as in any other felony, may be where a person, knowing a murder to have been committed, receives, relieves, comforts, or assists the offender; as to which kind of accessory some points are noticed in a former chapter.(p) And the question for the jury in such a case is whether such *person knowing the offence had been committed, was either assisting the [*710 murderer to conceal the death, or in any way enabling him to evade the pursuit of justice. (2) It may be here observed, however, that 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 such person accessory to the homicide; for till death ensues there is no felony committed.(r)

By the 24 & 25 Vict. c. 100, s. 1, "Whosoever shall be convicted of murder shall suffer death as a felon."

Sec. 67. "In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to the murder shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor."

Sec. 8. "Every offence which before the commencement of the Act of the 9 Geo. 4, c. 31, would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessories, shall be dealt with, indicted, tried, and punished as principals and accessories in murder."(s)

(m) Id. Ibid. Sed quære et vide Reg. v. Michael, 2 M. C. C. R. 120, post, and 1 Hale 431. (n) 1 Hale 436.

(0) 2 Hawk. P. C. c. 29, s. 20; 4 Blac. Com. 37.

(p) Ante, p. 64; and see Reg. v. Good, 1 C & K. 185 (47 E. C. L. R.), ante, p. 47, as to a wife being accessory after the fact to her husband.

(9) Rex v. Greenacre, 8 C. & P. 35 (34 E. C. L. R.), Tindal, C. J., Coleridge and Colt

(r) 4 Blac. Com. 38; 2 Hawk. P. C. c. 29, s. 35. But it should seem that he is accessory to the maliciously wounding. C. S. G.

(8) This clause is taken from the 9 Geo. 4, c. 31, s. 2; 10 Geo. 4, c. 34, s. 3 (I). Petit Treason was a breach of the lower allegiance of private and domestic faith; and considered as proceeding from the same principle of treachery in private life as would have led the person harboring it to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were somewhat numerous and involved in some uncertainty: 1 Hale 376; but, by the 25 Edw. 3, st. 5, c. 2, they were reduced to the following cases-1. Where a servant killed his master. 2. Where a wife killed her husband. 3. Where an ecclesiastical person, secular or regular, killed his superior, to whom he owed faith and obedience. The principles relating to wilful murder were also applicable to the crime of petit treason, which, though it appears to have been sometimes regarded differently [by unwary people, as Mr. J. Foster says, Fost. 323], was substantially the same offence as murder, differing only in degree: [Fost. 323, 327, 336; 4 Blac. Com, 203]. It was murder aggravated by the circumstance of the allegiance, however low, which the murderer owed to the deceased; and in consequence of that circumstance of aggravation,

It has been before submitted, that a statement of the several instances of gross and direct wilful murder cannot be thought necessary. But there are a variety of cases of a less decided character, and some upon which doubts have arisen which may properly be here considered. An apt arrangement of them is a matter of some difficulty; but the following order seems to be appropriate: I. Cases of provocation. II. Cases of mutual combat. III. Cases of resistance to officers of justice, to persons acting in their aid, and to private persons lawfully interfering to apprehend felons, or to prevent a breach of the peace. IV. Cases where the killing takes place in the prosecution of some other criminal, *unlawful, or wanton *711] act. V. Cases where the killing takes place in consequence of some lawful act being criminally or improperly performed, or of some act performed without lawful authority.

Sec. I. Cases of Provocation.

As the indulgence which is shown by the law in some cases to the first transport of passion is a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is committed. (t) All the circumstances of the case must lead to the conclusion that the act done, though intentional of death or great bodily harm, was not, the result of a cool deliberate judgment and previous malignity of heart, but solely imputable to human infirmity.(u) For there are many trivial, and some considerable provocations, which are not permitted to extenuate an act of homicide, or rebut the conclusion of malice, to which the other circumstances of the case may lead.

No breach of a man's word or promise; no trespass, either to lands or goods; no affront by bare words or gestures, however false and malicious, and aggravated with the most provoking circumstances, will free the party killing from the guilt of murder.(v) And And it is conceived that this rule will govern every case where the party killing upon such provocation makes use of a deadly weapon, or otherwise manifests an intention to kill, or do some great bodily harm.(w)

A. passing by the shop of B. distorted his mouth, and smiled at him, and B. killed him this was held murder; for it was no such provocation as would abate the presumption of malice in the party killing.(x)

Dangerfield was sentenced for a gross libel to be flogged from Newgate to Tyburn, and as he was returning from Tyburn, Frances, a barrister, asked him, in a jeering way, whether he had run his heat that day; he replied in scurrilous words; whereon Frances ran him into the eye with a small cane in his hand and of this wound Dangerfield died, and Frances was executed for his murder.(y)

If A. be passing along the street, and B. meeting him (there being a convenient distance between A. and the wall) take the wall of him, and thereupon A. kill B., this is a murder; but if B. had justled A. this justling had been a provocation, and would have made it manslaughter.(z)

*If there be a chiding between husband and wife, and the husband strike *712] his wife thereupon with a pestle, so that she dies presently, it is murder; and the chiding will not be a provocation to extenuate it to manslaughter.(a)

and of that alone, the judgment upon a conviction was more grievous in one case than in the other; though in common practice no material difference was made in the manner of the execution. As the offence of petit treason is now rendered the same as murder, the course is always to indict for murder, and it has therefore been thought unnecessary to reprint the chapter on Petit Treason, which was in the former editions. C. S. G. (u) 1 East P. C. c. 5, s. 19, p. 232.

(t) Fost. 315.

(v) Fost. 290; 1 Hawk. P. C. c. 31, s. 33; 1 Hale 455; Woodhead's case, 1 Lewin 163, Hullock, B.

(w) Fost. 290, 291.

(x) Brain's case, 1 Hale 455; Cro. Eliz. 778; Kel. 131.

(y) Rex v. Frances, 3 Mod. R. 68, in Rex v. Dangerfield.

(z) 1 Hale 455. But this case probably supposes considerable violence and insult in the justling.

(a) Crompt. fol. 120 (4). See also Kel. 64; 1 Hale 456.

A woman called a man, who was sitting drinking in an alehouse, “a son of a whore," upon which the man took up a broomstaff, and at a distance threw it at her and killed her; and it was propounded to the Judges whether this was murder or manslaughter. Two questions were made, 1. Whether bare words, or words of this nature would amount to such a provocation as would extenuate the fact into manslaughter. 2. Admitting that they would not, in case there had been a striking with such an instrument as necessarily would have caused death, as stabbing with a sword or shooting with a pistol; yet whether this striking, so improbable to cause death, would not alter the case. The Judges were not unanimous upon this case; and a pardon was recommended.(b)

If, without adequate provocation, a person strikes another with a deadly weapon, likely to occasion death, although he had no previous malice against the party, yet he is to be presumed to have had such malice at the moment from the circumstances, and he is guilty of murder. (c) Where, therefore, a boy, twelve years old, who had been in the habit of going to a cooper's shop and taking away chips, was told one morning by the cooper's apprentice not to come again; he however went again in the afternoon, and the apprentice spread his arms out to prevent his reaching the spot where he usually gathered the chips, on which the boy started off, and in passing a work bench, took up a whittle (a sharp-pointed steel knife with a long handle) and threw it at the apprentice, and the blade of the whittle entered his body, to the depth of four inches, and caused his death; the jury having found him guilty upon an indictment for manslaughter; Hullock, B., observed, that had he been indicted for murder, the evidence would have sustained the charge.(d) So where on an indictment for wounding it appeared that Withy and two women met the prisoner at midnight on the highway, and some words passed between them; when Withy struck the prisoner, who then made a blow with a knife, it was held that unless the prisoner apprehended robbery or some similar offence, or danger to life or some serious bodily harm, not simply being knocked down, he would not be justified in using the knife in self-defence. (e)

In a case where it was decided that if A. give slighting words to B., and B. thereupon immediately kill him, such killing would be murder in B., it is also stated to have been holden, that words of menace or bodily harm would amount to such a provocation as would reduce the offence of killing to manslaughter.(f) But it should be observed that in another report of the same case this latter position is not to be found.(g) And it seems that such *words ought at least to be accompanied by some act, denoting an immediate intention of following them up by an actual assault.(h)

[*713 Though an assault made with violence or circumstances of indignity upon a person, and resented immediately by the party acting in the heat of blood upon that provocation, and killing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood that the crime will be so extenuated by any trivial provocation which in point of law may amount to an assault;

(b) 1 Hale 455, 456.

(d) Langstaffe's case, supra.
(f) Lord Morley's case, 1 Hale 455.
(h) 1 East P. C. c. 5, s. 20, p. 233.

(c) Per Hullock, B., Langstaffe's case, 1 Lewin 162.
(e) Reg. v. Hewlett, 1 F. & F. 91, Crowder, J.
(g) Kel. 55.

1 That words or threats are not a sufficient provocation to reduce a killing to manslaughter, see State v. Jarrot, 1 Ired. 76; State v. Barfield, 8 Ibid. 344; State v. Mullen, 14 La. Ann. 570; Wall v. State, 18 Tex. 682; Lingo v. State, 29 Geo. 470; Dupree v. State, 33 Ala. 380; Hawkins v. State, 25 Geo. 207; Rapp v. Comm., 14 B. Mon. 614; People . Lombard, 17 Cal. 316; State v. O'Connor, 31 Mo. 389; People v. Butler, 8 Cal. 435. Mere threats, however violent, uttered by A. that he would kill B. on sight, having then his gun in his hand and saying he was hunting, does not justify B. in lying in wait and killing A.: Lander v. State, 12 Texas 462. For other cases of threats by the deceased to kill the prisoner communicated to him: Myers v. State, 33 Texas 525; People v. Scaggins, 37 Cal. 676; Pridgen v. State, 31 Texas 420; Gonzale v. State, Ibid. 495; State v. Gregor, 21 La. Ann. 473; Coker v. State, 20 Ark. 53; Ripley v. State, 2 Head 217; Keoner v. State, 18 Geo. 194; Atkins v. State, 16 Ark. 568; Newcomb v. State, 37 Miss. 383. As to fear of personal violence: Merideth v. Comm., 18 B. Mon. 49; Dupree v. State, 33 Ala. 380; Wesley v. State, 37 Miss. 327.