fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die, or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment, if he or she be in anywise convicted, as he or she should have suffered if the principal had been attainted."

CHAP. XIII.

PRINCIPALS IN THE FIRST DEGREE.

Principals in the First Degree. - Principals in the Second Degree.-Accessories before the Fact. -Accessories after the Fact. Offences of Principal and Accessory different in consideration of Law. An Acquittal as Principal no Bar to an Indictment as Accessory,

THE general definition of a principal in the first degree is one who is the actor or actual perpetrator of the fact. (1 Hale, 233. 615.) But it is not necessary that he should be actually present when the offence is consummated; for if one lay poison purposely for another who takes it, and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree. (Vaux's case, 4 Co. 446. Fost., 349.; R. v. Henley, 4 C. & P. 269. So, it is not necessary that the act should be perpetrated with his own hands ; for if an offence be committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal in the first degree. (See R. v. Giles, 1 Mood. C. C. 166.; Reg. v. Michael, 2 Mood. C. C. 120., 9 C. & P. 356.) But if the agent be aware of the consequences of his act, he is a principal in

the first degree, and the employer, if he be absent when the fact is committed, is an accessory before the fact." *

PRINCIPALS IN THE SECOND DEGREE.

"Principals in the second degree are those who are present, aiding and abetting at the commission of the fact.

"Presence in this sense is either actual or constructive. It is not necessary that the party should be actually present, an ear or eye-witness of the transaction: he is, in construction of law, present aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise. But he must be sufficiently near to give assistance, and the mere circumstance of a party going towards a place where a felony is to be committed, in order to assist in carrying off the property, and assisting in carrying it off, will not make him a principal in the second degree, unless, at the time of the felonious taking, he were within such a distance as to be able to assist in it. And although an act be committed in pursuance of a previous concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when the offence is committed, are not principals, but accessories before the fact. So, if one of them have been apprehended before the commission of the offence by the other, he can be convicted only as an ac

* Archbold, 3, 4.

I

114 PRINCIPALS IN THE SECOND DEGREE. [CHAP. XIII.

cessory before the fact. (Reg. v. Johnson, 1 C. & Mar. 218.) But presence during the whole of the transaction is not necessary; for instance, if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are, nevertheless, all guilty as principals.” *

"There must also be a participation in the act; for although a man be present whilst a felony is committed, if he take 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." (1 Hale, 439.; Fost. 350.) "It is not necessary, however, to prove that the party actually aided in the commission of the offence; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favour their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was present aiding and abetting. So, a participation, the result of a concerted design to commit a specific offence, is sufficient to constitute a principal in the second degree." "If one encourage another to commit suicide, and be present abetting him while he does so, such person is guilty of murder as a principal; and if two persons encourage each

* Archbold, 4.

other to self-murder, and one kills himself, but the other fails in the attempt, the latter is a principal in the murder of the other. (R. v. Dyson, R. & R. 523.) So likewise if several persons combine for an unlawful purpose, or for a purpose to be carried into effect by unlawful means, particularly if it be to be carried into effect, notwithstanding any opposition that may be offered against it, and one of them, in the prosecution of it, kill a man, it is murder in all who are present, whether they actually aid or abet, or not, provided the death were caused by the act of some one of the party in the course of his endeavours to effect the common object of the assembly. But the act must be the result of the confederacy; for, if several are out for the purpose of committing a felony, and, upon alarm and pursuit, run different ways, and one of them kill a pursuer to avoid being taken, the others are not to be considered as principals in that offence." (R. v. White, R. & R. 99.)*

"A mere participation in the act, without a felonious participation in the design, will not be sufficient." (1 East, P. C. 258.; R. v. Plummer, 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."

"In the case of murder by duelling, in strictness both of the seconds are principals in the second degree; yet Lord Hale considers that as far as * Archbold, 5. † Ibid. 6.