Hale, that if A. commands B. to kill C., and B. by mistake kills D., or else in striking at C. kills D., but misses C., A. is not accessory to *the murder of D., because it differs in the person. 1 Hale, P. *185] C. 617, citing 3 Inst. 51; R. v. Saunders, Plow. Com. 475.

The circumstances of Saunders' 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 accessory to the murder.

Upon the law as laid down by Lord Hale, and upon R. v. Saunders, 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, etc., 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 this guide he fell into a mistake, which it is great odds any man in his circumstances might have fallen into." I therefore," continued 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 observes, 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. Id. 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 advent, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject? Foster, 372. See also Hawk. P. C. b. 2, c. 29, s. 22.

Accessories before the fact in felonies-how indicted. Before the Pa. Sup. Ct. Dig. 335. See Anarchists' case, 12 N. E. Rep. 865; s. c. 6 Am Crim. Rep. 570.

7 Geo. 4, c. 64, accessories could not, except by their own consent, be punished until the guilt of the principal offender was established.1 It was necessary, therefore, either to try them after the principal had been convicted, or upon the same indictment with him, and the latter was the usual course. 1 Russ. Cri. 174, 5th ed. This statute is now repealed, and by the 24 & 25 Vict. c. 94, s. 1, it is enacted, that "whosoever shall become an accessory before the fact to any felony whether the same be a felony at common law or by virtue of any act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon.' principal felon." By s. 2, "whosoever *shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law, or [*186 by virtue of any act passed or to be passed, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to

1 Commonwealth v. Andrews, 3 Mass. 136; State v. Groff, 1 Murph. 270. An accessory in a felony cannot be put upon his trial if the principal be dead without conviction. Commonwealth v. Phillips, 16 Mass. 423. See Russell on C. & M. 21, n. A. Where the principal and accessory are joined in one indictment, but are tried separately, the record of the conviction of the principal is prima facie evidence of his guilt, upon the trial of the accessory, and the burden of proof rests on the accessory, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted. Commonwealth v. Knapp, 10 Pick. 477. See also State v. Crank, 2 Bail. 66. [But where all are indicted as principals and tried separately, the conviction of one does not raise any presumption against the others who are tried subsequently. Coxwell v. State, 66 Ga. 309.] It is not necessary to set out the conviction of the principal in the indictment. State v. Crank, 2 Bail. 66. The court may in its discretion permit an accessory to be tried separately from the principal. State v. Yancey, 1 Const. Rep. 237. An accessory cannot be put on trial before the conviction of the principal, unless he consent thereto, or be put on his trial with his principal. State v. Pybuss, 4 Hump. 422; Whitehead v. State, 16 Mass. 278; Commonwealth v. Woodward, Thac. Cr. Cas. 63; Sampson v. Commonwealth, 5 W. & S. 385. The record is conclusive evidence of the conviction of the principal, and prima facie evidence of his guilt. Studstill v. State, 7 Ga. 2; State v. Duncan, 6 Ired. 236. Though the accessory may be convicted before the principal, yet the offence of the principal must be alleged; Ulmer v. State, 14 Ind. 52; and proved; Ogden v. State, 12 Wis. 538. An accessory may be indicted without the conviction of the principal being averred, but his guilt must be averred, and the evidence must show that his guilt was legally established before the trial of the accessory. Holmes v. Commonwealth, 25 Pa. Št. 221. Under an indictment as principal the defendant cannot be found guilty as an accessory after the fact. People v. Gassaway, 28 Cal. 404. An accessory to felony cannot be convicted upon an indictment charging him as principal. State v. Wycoff, 2 Vr. 65. S.

The admissions and confessions of any of the principals are admissible to prove the guilt of the accessory; they are not to be limited in their application to the question of the guilt of the principals. Territory v. Dwenger, 2 New Mexico, 73. But where these declarations have been made in the absence of the defendant, they are not admissible against him until other evidence than that of the principal has been produced implicating the accomplice in the offence. Casey v. State, 37 Ark. 67. A principal offender is before judgment of conviction of felony a competent witness against an accessory in the same. Keech v. State, 15 Fla. 591.

2 For a similar statute in Pennsylvania see Campbell v. Commonwealth, 84 Pa. St. 187; Brandt v. Commonwealth, 94 Pa. St. 290. In Illinois see the Anarchists' case, 12 N. E. Rep. 865; s. c. 6 Am. Crim. Rep. 570.

justice, and may thereupon be punished in the same manner as an accessory before the fact to the same felony, if convicted as an accessory, may be punished."

Soliciting and inciting a person to commit a felony is not a substantive felony under this section, unless the felony is actually committed, but only a misdemeanor, and it is doubtful whether a soliciting and inciting is equivalent to a counselling and procuring. R. v. Gregory, L. R., 1 C. C. R. 77; 36 L. J., M. C. 60.

It was decided upon the 11 & 12 Vict. c. 46, s. 1 (which is in the same terms as the 24 & 25 Vict. c. 94, s. 1, and was passed to remedy a defect in the 7 Geo. 4, c. 64), that a person charged as an accessory before the fact may be convicted even though the principal be ac quitted. R. v. Hughes, Bell, C. C. 242. The two first counts charged A. & B. with stealing, and the third count charged B. with receiving. No evidence was offered against A., who was acquitted and called as a witness. The evidence went to show that B. was an accessory before the fact, and the jury found a general verdict of guilty. It was held that the conviction was good. Erle, J., said, "We consider that being an accessory before the fact now stands as a substantive felony, and that now the conviction of an accessory would stand good, and no wrong be done him, though he should be tried before the principal."

By the 24 & 25 Vict. c. 94, s. 5, "if any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessory either before or after the fact, in the same manner as if such a principal felon had been attainted thereof, notwithstanding such principal shall die or be pardoned, or otherwise delivered before attainder; and every such accessory shall upon conviction suffer the same punishment as he would have suffered if the principal had been attainted." By the 24 & 25 Vict. c. 94, s. 6 (replacing the 14 & 15 Vict. c. 100, s. 15), "any number of accessories at different times to any felony, and any number of receivers at different times of property stolen at one time, may be charged with substantive felonies in the same indictment, and may be tried together, notwithstanding the principal felon shall not be included in the same indictment, or shall be in custody or amenable to justice."

says

Accessories after the fact in felonies. An accessory after the fact, Lord Hale, is where a person knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon; 1 Hale, P. C. 618; whether he be a principal, or an accessory before the fact. 2 Hawk. c. 29, s. 1; 3 P. Wms. 475. But a feme covert does not become an accessory by receiving her husband. This,

1

To constitute an accessory after the fact, the aid and assistance must be given after the felony is fully completed; and hence a party rendering assistance to another after the mortal blow has been struck, and before death has taken place, cannot be convicted as an accessory to the crime of murder after the fact; his offence is that of an accessory after the fact to the crime of an assault and battery with intent to kill the crime of murder not being complete until the death of the party takes place. Harrel v. State, 39 Miss. 702. S.

however, is the only relationship which will excuse such an act, the husband being liable for receiving the wife. 1 Hale, P. C. 621. So if a master receives his servant, or a servant his master, or a brother his brother, they are accessories, in the same manner as a *stranger would be. Hawk. P. C. b. 2, c. 29, s. 34. If a husband and wife knowingly receive a felon, it shall be deemed [*187 to be the act of the husband only. 1 Hale, P. C. 621. But if the wife alone, the husband being ignorant of it, receive any other person being a felon, the wife is accessory, and not the husband. Id.

With regard to the acts which will render a man guilty as an accessory after the fact, it is laid down, that generally any assistance whatever, given to a person known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose; as where a person assists him with a horse to ride away with, or with money or victuals to support him in his escape: or where any one harbors and conceals in his house a felon under pursuit, in consequence of which his pursuers cannot find him; much more, where the party harbors a felon, and the pursuers dare not take him. Hawk. P. C. b. 2, c. 29, s. 26. See R. v. Lee, 6 C. & P. 536, 25 E. C.L. So a man who employs another person to harbor the principal may be convicted as an accessory after the fact, although he himself did no act to relieve or assist the principal. R. v. Jarvis, 2 Moo. & R. 40. So it appears to be settled that whoever rescues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessory. Hawk. P. C. b. 2, c. 29, s. 27. In the same manner conveying instruments to a felon, to enable him to break gaol, or to bribe the gaoler to let him escape, make the party an accessory. But to relieve a felon in gaol with clothes or other necessaries is no offence, for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law. 4 Bl. Com. 38.

Merely suffering the principal to escape will not make the party an accessory after the fact, for it amounts at most but to a mere omission. 9 H. 4, st. 1; 1 Hale, 619. So if a person speak or write, in order to obtain a felon's pardon or deliverance; 26 Ass. 47; or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; 3 Inst. 139; 1 Hale, 620; or even if he himself agree for money not to give evidence against the felon ; Moo. 8; or know of the felony, and do not discover it; 1 Hale, 371, 618; none of these acts will make a party an accessory after the fact. The felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. As if one wounded another mortally, and after the wound given, but before death ensued, a person assisted or removed the delinquent, this did not, at common law, make him accessory to the homicide, for till death ensued, there was no felony committed. Hawk. P. C. b. 2, c. 29, s. 35; 4 Bl. Com. 38.

In order to render a man guilty as accessory, he must have notice,

convicted of manslaughter become accessories. See post, tit. Manslaughter. It is said in the older books that in forgery all are principals: (see 2 East, P. C. 973;) but this must be understood of forgery at common law, which is a misdemeanor. Id.

Aiders and abettors, or principals in the second degree in felonies. Aiding and abetting a person to commit a felony is in itself a *substantive felony, whether the felony be such at common law

*182] or by statute. R. v. Tattersall, 1 Russ. Cri. 157, 5th ed. An aider and abettor is also called a principal in the second degree. R. v. Coalheaver, 1 Lea. 64; Fost. 428.

To make a man principal in the second degree he must be present at the commission of the felony. R. v. Soare, 2 East, P. C. 974; Russ. & Ry. 25; R. v. Davis, Id. 113; R. v. Badcock, Id. 249, and other cases in the same report. By presence is meant such contiguity as will enable the party to render assistance to the main design.

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 to him; some to commit the act, 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 act 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. R. v. Owen, 1 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 does not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon. 1 Hale, 439; Foster, 350. So a mere participation in the act, without a felonious participation in the design, will not be sufficient.

1 State v. McGregor, 41 N. H. 407; Brown v. Perkins, 1 Allen, 89. 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. C. 440. [Kemp v. Commonwealth, 80 Va. 443.] When one is present at the commission of a felony, though he gives no active assistance, but only remains near for the purpose of watching and giving aid if necessary, he is properly charged as principal. Doan v. State, 26 Ind. 495; State v. Squares, 2 Nev. 226; Commonwealth v. Chapman, 11 Cush. 422. A person need not be present when a crime is committed to constitute him a principal. Pritchard v. State, 30 Ga. 757. An unmarried man, who is present aiding and abetting a friend in committing bigamy, may be convicted of that crime as principal in the second degree. Boggus v. State, 34 Ga. 275. S.