first degree in this case, though he acts through a conscious agent, and is not present at the time of the act.

§ 70. Principals in the second degree. A principal in the second degree is one who, though not performing the main act in the crime, is near enough at the time of the commission to give the principal actor encouragement or positive aid and assistance. By the most ancient common law as it was generally understood, those persons only were considered as principals in murder who actually killed the man, and those who were present aiding and abetting were considered as accessories. But the law was otherwise settled at an early day, and it was adjudged that he who was present, aiding and abetting, was to be considered as actually killing as much as if he had given the deadly blow. To convict one as principal in the second degree it must be proved that he was in such a position by agreement with the perpetrator of the crime, or with his previous knowledge and assent, for the purpose of rendering aid and encouragement in the commission of it. But if the abettor was consenting to the crime and in a situation in which he might render aid if necessary, it would follow as a necessary legal inference that he was actually abetting in the crime. The presence of the abettor under such circumstances must encourage and embolden the perpetrator, and this is sufficient assistance. A highway robber who placed himself at a point of advantage, where he could see the approach of the stage coach at a distance, and by signals informed his companions of the fact, was held liable as a principal in the second degree. Likewise one who knew that a store

was to be robbed and by agreement invited the proprietor to a dance to keep him away from the store while it was being robbed, was considered liable as a principal in the second degree though not near enough to know when the crime was committed, his part being to watch the owner (1).

§ 71. Accessory before the fact. An accessory before the fact is one who plans it in advance or gives assistance beforehand to the principal. One essential of an accessory before the fact is that he shall not be present, or within distance to give assistance at the time of the act; otherwise he would be a principal in the second degree.

§ 72. Accessory after the fact. An accessory after the fact is one, who, knowing a felony to have been committed by another, aids the felon to avoid punishment. The reason on which the common law makes a party in such a case criminal, is that the course of public justice is hindered, and justice itself is evaded by facilitating the escape of the felon. To constitute one an accessory after the fact three things are requisite: 1. The felony must have been committed. 2. He must know that the felony had been committed. 3. He must receive, relieve, comfort, or aid the felon. The notice must be direct, or at least actual. The relief given to the felon must be such as aids him to escape, as by concealing him, shutting the door in the face of his pursuers, furnishing him a horse to get away, suppressing the testimony against him, inducing the witnesses not to testify, furnishing him with money and the like. It is not enough

that his bodily wants shall have been supplied, as by giving him food and shelter, if these do not assist him in concealment or escape.

§ 73. Liable for what acts of others. In order that one person shall be liable for the criminal act of another, it must appear that there was some complicity between them, that they had some common design, and that the crime charged was committed in an attempt to further that design or as a natural consequence of it. If two persons agree upon a crime and one of the parties turns aside to commit a wholly independent crime, the other is not responsible for that. But where three parties planned a burglary, two going inside of the building, and the other keeping watch on the outside, all were held liable criminally for homicide resulting from opposition by the guard and the attempt of one to escape by shooting him (2).

§ 74. Abandonment. If one plans the crime with another, the mere fact of planning constitutes a conspiracy which no subsequent repentence will excuse. But if any of the parties repents of the act and notifies his companions of his retraction before the act is committed he is not liable criminally for the act, although they proceed to its execution. In this case the notice given to his companions may be by word or act, but it should be so unequivocal that there is no danger of his prior agreement furnishing encouragement to the others at the time the act is committed.

§ 75. Principal must be first convicted. Formerly, if

(2) Ruloff v. People, 45 N. Y. 213.

a man was indicted as accessory to the same crime with two or more persons, he could not be arraigned till all the principals were convicted and attained; and in order to try an accessory when only one of the principals had been convicted, it was necessary to indict and arraign him as accessory to that one only. The modern decisions have somewhat modified this rule, but it seems clear that the accessory cannot now be put on trial as accessory to any who have not yet been convicted, unless he waives the defense. If the conviction of the principal has become impossible by his death, still the accessory could not be put to trial; for it may be that the principal if living could make a good defense. The reason for the rules above stated is that unless there is a principal there eannot be an accessory.

CHAPTER VI.

JURISDICTION.

§ 76. What courts have jurisdiction of crimes in a particular place. Every nation has jurisdiction to punish crimes committed within its territory, and may prescribe what courts shall have jurisdiction of each particular offense. The ships of each nation are considered as floating territory, over which they have jurisdiction, regardless of the nationality of the persons committing the crime on the ship, or the place where the ship may be, providing the law of the country whose flag it floats warrants the prosecution. On this ground it was held that an English court could punish an American citizen for a murder committed on a British boat in a river in France 90 miles from the sea (1). It is also clear that every country may assume jurisdiction of crimes committed within its own waters, which, by the law of nations, includes at least so much of the sea as lies within three miles of shore, and all bays and gulfs within headlands less then six miles apart (2).

§ 77. If wrong in one place takes effect in another. The criminal may be punished for his act at the place where it takes effect, regardless of where he was at the time he set the force in motion which resulted in the

(1) Queen v. Anderson, 11 Cox Crim. Cases 198. Manchester v. Massachusetts, 139 U. S. 240.

(2)