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62. Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was counselled or suggested.

2. Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew, or ought to have known, to be likely to be committed in consequence of such counselling or procuring.

It will be seen here that the distinctons between principals of the first and second degree and between principals and accessories before the fact are done away with, and that are expressly made principals or parties, to and equally guilty of an offence, who, (a) actually commit it, (b), who do or omit anything to help its commission, (e) who abet or assist at its commission, or (d) who counsel or procure its commission.

In reality, and for all practical purposes the distinctions between principals and accessories before the fact were removed years ago, and have since existed only in name. In England, accessories before the fact were placed on the same footing, in every respect, with principals, by the 24 and 25 Vict. c. 94; and in Canada the same thing was done by the R. S. C. chap. 145, which enacted that every principal in the second degree and every accessory before the fact to any felony should be tried and punished as a principal felon; that every one aiding, abetting, counselling or procuring the commission of any misdemeanor should be tried and punished as a principal offender; and that every one aiding, abetting, counsel'ing or procuring the commission of any offence punishable summarily should also be punishable as a principal offender.

The Code, therefore drops these unnecessary nominal distinctions, and gives only two classes of persons as being, in regard to the degree of their guilt, parties to or implicated in a criminal offence, namely,

PRINCIPALS, AND ACCESSORIES AFTER THE FACT.

Principals.—A principal may be, the actual perpetrator of the act, that is, the one who, with his own hands or through an innocent agent, does the act itself; he may be one who, before the act is done, does or omits something to help its commission, he may be one who counsels or procures the doing of it, or who does it through the medium of a guilty agent or he may be one who is present, aiding and abetting another in the doing of it.

To be the actual perpetrator of the act with his own hands, the offender may or may not be present when it is consummated.

ILLUSTRATIONS.

A purposely lays poison for B, who takes it, and dies from it, A, although absent when the poison is taken, is the actual perpetrator of the deed. (1).

A and B were hired to unload sacks of oats from a ship and convey them to C's warehouse, A bringing out the sacks of oats from the ship and putting them on B's carts, and B drawing the loads from the ship's side to the warehouse. B, when starting with one of his loads, called out, It's all right," to A. who shortly afterwards,-while B was away with the load with which he had started,-went to another cart near the vessel, emptied into a nosebag some oats

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(1) Fost. 349; 1 Russ. Cr. 5 Ed. 161; Burbridge Dig. Cr. Law 42; Vaux's case, 4 Co. 44; Bish. Cr. Law Com, s. 651.

from two sacks on the cart, and then placed the nosebag under the cart. When Breturned to the vessel a few minutes later with the emply cart he took the nosebag from under the other cart where A had placed it, put on his cart, and drove off with it, A then being on the vessel and within a few yards of B. Held, that as these circumstances shewed one transaction in which A and B both concurred and in which both were present at some part, though not at evey part of it, both were properly convicted as principals and actual prerpetrators of the larceny. (1)

To be the actual perpetrator of the act, by means of an innocent agent, is, for instance, where an offender, who may be absent when the act is done, uses, as an instrument to effect his purpose, a child under years of discretion, a mad man or other person of defective mental capacity, or any one excused from responsibility by ignorance of fact or other cause. (2)

ILLUSTRATIONS.

Where A induced B a child of nine to take money from his father's till, and give it to A, it was left to the jury to say whether B was acting unconsciously of guilt at the dictation and as the innocent agent of A (3).

A gives to B a note which he knows is forged, and asks him to get it cashed. If B gets it cashed, not knowing it to be forged, the innocent uttering by him is the guilty uttering of A, though A is absent when it is done (4).

If a person employed as an instrument is aware of the nature of the act but merely concurs in it for the purpose of detecting and punishing the person employing him, he is, in that case, also considered and treated as an innocent agent (5).

A person who before the commission of an offence does something to aid in its being committed may also be a principal without being present when it is actually committed or completed.

ILLUSTRATIONS.

A, a servant, let B into his master's house to steal therein his master's money. B continued inside until he committed the theft, but A left the house before the theft was actually committed. A was a party to the offence; (6) and would now be held a principal.

A, a servant, unlocks the door of the house that B may enter and steal therein, which he does about 20 minutes after A has left the house. A is a principal offender. (7)

A person who counsels or procures the commission of an offence, or who does it through the medium of a guilty agent is necessarily absent when the offence is actually committed; or, if present, he would be doing or aiding at the very act itself. It seems to be in the very nature of things that there should be no distinction drawn between the guilt of one who procures a crime to be done and

that of the

a

agent who does it for him; or, at least, the distinction, if any, should

not be in favor of the procurer. It is only right that the procurer or any one

(1) Reg. v Kelly, 2 C. and K. 379; 1 Russ Cr. 158.

(2) Fost. 349; 1 Bish. Cr. Law Com. s. 651.

(3) Reg. v. Manley: 1 Cox. C. C. 104; 1 Russ. Cr. 160; Burbridge Dig. Cr.

Law, 43.

(4) Reg. v. Palmer & Hudson, 1 New Rep, 96.

(5) R. v. Bannen, 2 Mood. C. C. 309; 1 C. & K. 295.

Reg.

V.

Tuckwell, C. & M. 215; 1 Russ. Cr. 158.

(7) Reg. v. Jeffries & Bryant, Gloucester Spr. Ass. 1848; Cresswell & Patterson, JJ., MSS., S. G., 3 Cox, C. C., 85; I Russ. Cr. 159.

who commits an offence by the agency of another should be treated as a principal, whether his agent or instrument be a guilty or an innocent one for qui facit per alium facit per se,-what one causes to be done by another is regarded as done by himself. (1)

The procurement may be personal, that is, personal between the procurer and the doer; or it may be through the intervention of a third party; and it will be sufficient even though the employer merely direct his agent to procure some other person without naming him. (2) It may be direct,-by hire, counsel, or command, or by conspiracy; or it may be indirect,—by expressly evincing, (that is, evincing by some words or actions), a liking for, approbation of, or assent to another's criminal design of committing an offence. (3) Still, a mere silent acquiescence would not be suflicient. (4)

The procurement must be continuing; for if the procurer repent, before the offence is committed, actually countermand his order, and the person whom he has ordered counselled or procured persists in committing the offence in spite of the countermand, it seems that the original contriver will not be held responsible as a party to the offence. (5) But, query, would be not, by having counselled the commission of the crime be held (under article 64) guilty of an attempt to commit it, notwithstanding his subsequent repentance?

If a person order counsel or advise one crime and the person ordered counselled or advised intentionally commit another, as, for instance, if he be ordered to burn a house and instead of that he commit a theft, or if his instructions are to commit a crime against A, and instead of doing so he purposely commit the crime against B, the person so ordering will not be answerable. (6) But if it be merely by mistake that he commits the offence against B instead of A, in that case the person ordering would be responsible. (7) And it is clearly laid down by the above article, 62, that he who counsels or procures the commission of any offence is a party to it, although the offence itself be committed in a way different from that which was counselled, and he is a party to every offence which is committed in consequence of such counselling, and which he knew or ought to have known to be likely to be committed in consequence of such counselling; and therefore both by this article and by the common law he is liable for everything that ensues upon the execution of the unlawful act counselled or commanded.

ILLUSTRATIONS.

A commands B to beat C, and B beats him to such an extent that he dies. A is a party to the murder. (8)

A commands B to burn C's house, and in the burning, the house of D is burned also. A is a party to the offence of burning D's house. (9)

A hires B to kill C by means of poison; and instead of poisoning him B kills C by shooting him. A is a party to the murder. (10)

Soliciting as an attempt.-When a person with criminal intent solicits or. advises another to commit an offence, which the other does not commit at all.

(1) Broom's Leg. Max., 2 Ed. 643; Co. Lit. 258 a.

(2) Fost. 121, 125; R. v. Cooper, 5 C. & P. 535; 1 Bish. New Cr. L. Com s. 677.

(3) R. v. Cooper, 5 C. & P. 535.

(4) Reg. v. Atkinson, 11 Cox, C. C., 330; 1 Bish. New Cr. L. Com., s. 633. (5) Arch. Cr. Pl. 11.

(6) 2 Hawk., P. C, c. 29, s. 21, 22.

(7) Fost. 370 et seq.; 2 Hawk., P. C., c. 29, s. 22; 1 Bish. New Cr. L. Com., s. 640.

(8) 4 Bl. Com. 37; 1 Hale, 617.

(9) R. v. Saunders, Plowd, 475. (10) Fost. 369, 370.

the soliciting or advising in that case will constitute on the part of the would-be procurer an attempt to commit the offence solicited or advised by him. (1)

A person may be considered as a principal present aiding and abetting in the commission of an offence, without his presence being such a strict, actual, immediate presence as would make him an eye or ear witness of what is passing; it may be a constructive presence. (2) So that if a number of persons set out together, or in small parties, upon one common design, be it murder or any other offence, or for any other purpose of an unlawful nature in itself, and each takes the part assigned to him; some to commit the act, others to watch at proper distances and stations to prevent a surprise or to favor if need be the escape of those more immediately engaged; they are all, provided the act be committed, present at it. in the eye of the law; for the part taken by each man in his particular station tended to give countenance, encouragement and protection to the whole gang and to ensure the success of their common enterprise. (3) If, however, the original intention or purpose of persons assembling and setting out together be a lawful one and if their common purpose be prosecuted by lawful means, and opposition to them be made by others, and one of the opposing party is killed in the struggle, in that case the person actually killing may be guilty of murder or manslaughter, as circumstances may vary the case, but the persons engagod with him will not be involved in his guilt, unless they actually aided and abetted him in the fact. (4)

63. Accessory after the fact.—An accessory after the fact to an offence is one who receives, comforts or assists any one who has been a party to such offence in order to enable him to escape, knowing him to have been a party thereto.

2. No married person whose husband or wife has been a party to an offence shall become an accessory after the fact thereto by receiving, comforting or assisting the other of them, and no married woman whose husband has been a party to an offence shall become an accessory after the fact thereto, by receiving, comforting or assisting in his presence and by his authority any other person who has been a party to such offence in order to enable her husband or such other person to escape.

The evident basis of this offence is that to assist an offender to escape punishment is, in principle, an obstruction of public justice of the same nature as resisting a peace officer in making an arrest, or rescuing a prisoner under arrest, and other like offences. To be an accessory after the fact a man must be aware of the guilt of the person whom he harbors or assists. And one does not become an accessory after the fact by merely neglecting to inform the authorities that a crime has been committed, or by forbearing to arrest the offender. (5)

The test of an accessory after the fact seems to be that he renders the principal offender some active personal help to enable him to escape punishment, as, by furnishing him with money or food to support him in hiding, or by supplying him with a horse to enable him to fly from his pursuers, or a house or other shelter to conceal him in, or by using open force and violence to protect him, or by conveying instruments to an offender to enable him to break gaol, or by bribing the gaoler to let him escape. (6) Of course when a person actually rescues an offender from prison or from lawful custody, the rescuer is not only

(1) Reg. v. Gregory, Law Rep. 1 C. C. 77; 10 Cox C. C. 459; 1 Bish. New Cr. L. Com.. s.s. 767, 772a.

See article 64, post.

(2) Russ. Cr., 5 Ed. 157.

(3) Fost, 350; 2 Hawk, P. C., c. 29, s. 7, 8; Reg. v. Howell, 9 C. & P. 437.

(4) Fost, 354-5; 1 Russ. Cr. 163-4.

(5) 1 Hale, P. C. 618, 619.

(6) 1 Bish. New Cr. L. Com., p. 422; 4 Bl. Com. 38.

guilty of being an accessory after the fact to the other's offence, if he has actually committed one, but also of the substantive offence of rescue; and he may be indicted either way at the election of the prosecution. (1) But where the rescue is effected before the principal offender has been convicted, the prosecution would probably prefer to prosecute the rescuer on the substantive offence of rescue; for when a person is in prison or in lawful custody upon a criminal charge it is an offence to rescue him or to help him to break prison, whether the prisoner be guilty or not of the crime charged against him. (2)

64. Attempts.-Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intented whether under the circumstances it was possible to commit such offence or not.

2. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

An attempt is "an abortive or frustated effort : " (3) A bare intention to commit a criminal offence is not of itself punishable; but, in order to be so, there must be some act or acts amounting either to an actual or an attempted carrying out of the criminal intention. Thus, if A resolves in his own mind to shoot B, and openly avows it, he therely commits no criminal offence: (4) but when he does something in execution of his design, and, through being interrupted or through some unforeseen cause intervening, he falls short of the actual perpetration of the intended offence he is guilty of an attempt (5).

An attempt to commit a crime may be made by soliciting another to commit it. For, as, on the one hand, a person is guilty, as a principal offender, of an offence which he solicits, advices or incites another to commit, and which the other actually does commit, (6) so, on the other hand, when a person solicits advises or incites another to commit an offence which the other does not commit, the act of soliciting, advising or inciting amounts to an attempt to commit the offence in view (7). In other words, one who unsuccessfully solicits or advises the commission of an offence is guilty of an attempt to commit it; while one whose solicitation is successful in procuring the actual commission of an offence is a party to its commission. Thus, where one wrote to a school boy to meet him for the purpose of sodomy, but the boy, without even reading the letter, passed it to the school authorities, it was held that the offence of attempt by solicitation was complete (8). It is said that an act to constitute an attempt must be such as directly approximates to or is closely connected with the actual commission of the intended offence. (9) In the application of this principle some nice questions have arisen as to what acts, on the one hand, are preparation too

(1) Rex v. Burridge, 3 P. Wms. 439, 483, 485, 493.

(2) Articles 165, 166, 167, post; Reg. v. Allan, Car. & M. 295; R. v. Haswell, Russ. & Ry. 458; 1 Bish. New Cr. L. Com., p. 423.

(3) Holloway v. Reg. 17 Q. B. 317; Broom's Com. L. 5 Ed. 856.

(4) See article 959, par. 2, post, as to right to compel persons using threats of bodily harm to furnish security to keep the peace.

(5) R. v Scofield, Cald. 397, 403; 1 East P. C. 58, 225; 1 Bish. New Cr. L. Com pp. 111, 113; | Russ. Cr. 5 Ed. 188; R. v. Connoly, 26 Q. B. (Ont.) 322 ; Clark Mag. Man. 2 Ed. 435.

(6) See article 61, ante p. 35.

(7) 2 Steph. Hist. Cr. L. 230; R. v. Higgins, 2 East, 5; R. v. Daniels, 1 Salk, 380 R. v. Collingwood, 3 Salk. 42; 2 L. R. 1116; Woolrych Cr. L. 1194; 1 Russ. Cr. 5 Ed. 189.

(8) Reg. v. Ransford, 13 Cox. C. C 9; 1 Bish New Cr. L. Com. p. 462.

(9) Harris Cr. L. 4 Ed. 16; Reg. v. Eagleton, Dears. C. C. 515; 1 Russ Cr. 5 Ed. 190; 2 Steph. Hist. Cr. L. 224.

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