CHAPTER III. OF PRINCIPALS AND ACCESSORIES. [IT having been shown in the preceding chapter what persons are, or are not, upon account of their situation and circumstances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of offending; viz. as principal and accessory. I. A man may be principal in an offence, in two degrees. A principal in the first degree, is he that is the actor or absolute perpetrator of the crime: and, in the second degree, he who is present, aiding and abetting the fact to be done (a). Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance (b). And this rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or persuading another to drink it who is ignorant of its poisonous quality (c), or giving it to him for (a) 1 Hale, P. C. 615. See R. v. Howell, Car. & P. 437. In the case of rape, if the prisoner was present aiding and abetting, he may in the indictment be charged as principal either in the first or the second degree. (R. v. Crisham, 1 Car. & M. 187.) A principal in the second degree in larceny, cannot be convicted as a receiver. (Queen v. Perkins, 21 L. J. (M. C.) 152.) (b) Foster, 350. (c) Kel. 52; Foster, 349. [that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed (d); and the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed; letting out a wild beast, with an intent to do mischief; or exciting a madman to commit murder, so that death thereupon ensues: in every of these cases the party offending is guilty of murder as a principal, in the first degree. For he cannot be called an accessory, that necessarily pre-supposing a principal; and the poison, the pitfall, the beast, or the madman, cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty, either as principal or accessory, and cannot be so as accessory, it follows that he must be so as principal; and, if principal, then in the first degree: for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist (e).] It is to be observed, however, that though the law makes the distinction between principals in the first and in the second degree, yet in general the punishment inflicted upon either class of offenders is the same (f). But where a statute imposes the punishment of death on the persons committing a specified offence, and not on the offence itself in terms,it has been held that such capital punishment will apply to principals in the first degree only, and not to those in the second (g). II. [An accessory is he who is not the chief actor in the (d) 3 Inst. 138; 1 Hale, P. C. 616; Hawk. P. C. b. 2, c. 29, s. 11. (e) 1 Hale, P. C. 617; Hawk. P. C. b. 2, c. 29, s. 11. (f) See, in particular, the follow ing enactments, 24 & 25 Vict. c. 96, s. 98; c. 97, s. 56; c. 98, s. 49; c. 99, s. 35; c. 100, s. 67; in reference to the felonies punishable under those Acts respectively. (g) Foster, 356, 357. [offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will first examine what offences admit of accessories, and what not; secondly, who may be an accessory before the fact; thirdly, who may be an accessory after it; and, lastly, how accessories, considered merely as such, and distinct from principals, are to be treated. 1. And first, as to what offences admit of accessories, and what not. In treason there are no accessories, but all are principals: the same acts that make a man accessory in felony, making him a principal in treason, upon account of the heinousness of the crime (k). Besides, it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the sovereign, or conspiring to take away his crown. And, as no one can advise or abet such a crime without an intention to have it done, there can be no accessories before the fact; since the very advice and abetment amount to principal treason.] In murder or other felonies, [there may be accessories; except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact (1). So, too, in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals (m); the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because (k) 3 Inst. 138; 1 Hale, P. C. (1) 1 Hale, P. C. pp. 615, 616; 288. But see (m) 1 Hale, P. C. 613, 616; see Moland's case, 2 Moody's C. C. R. 276; Queen v. Greenwood, 21 L. J. (M. C.) 127. In accordance with this rule, the 24 & 25 Vict. c. 94, s. 8, declares that "whosoever shall "aid, abet, counsel, or procure the [the law, which de minimis non curat, does not descend to distinguish the different shades of guilt] in crimes below the degree of felony. 2. [As to the second point, who may be an accessory before the fact: Sir Matthew Hale defines him to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime (n). Herein absence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal (o). If A. then advises B. to kill another, and B. does it in the absence of A.; now B. is principal and A. is accessory to the murder. And this holds, even though the party killed be not in rerum naturæ at the time of the advice given. As, if A., the reputed father, advises B., the mother of a bastard child, unborn, to strangle it when born, and she does so; A. is accessory to this murder (p). And it is also settled, that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact (g). It is likewise a rule, that he who in anywise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act,] supposing at least that it was a probable consequence thereof (r); [but is not accessory to any act distinct from the other.] As if A. advises B. to rob C., and B. does so accordingly, and on resistance made, kills C., B. is guilty of murder as principal, and A. as accessory (s). [But if A. commands B. to burn C.'s house, "commission of any misdemeanor, "shall be liable to be indicted, tried "and punished as a principal offen"der." (n) 1 Hale, P. C. 615, 616. (0) He is principal, if present only at the commencement of the transaction, though absent before its completion. (See R. v. Jordan, 7 Car. & P. 432; R. v. Tuckwell, 1 Car. & Mar. 215.) (p) Dyer, 186. (q) Foster, 125. (r) This qualification of the rule will be found in Fost. 370. (And see 1 Hale, P. C. 617.) And it seems that in reason it must be so qualified. (s) Fost. 370. Blackstone, vol. iv. p. 37 (after Hale), puts the case of A. commanding B. to beat C., and B. beating him so that he dies. [and he, in so doing, commits a robbery; now A., though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature (t). But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters;-as if, upon a command to poison Titius, he is stabbed or shot, and dies;the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance (u). 3. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts or assists the felon (x). Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed (y),] and that it was committed by the party in question. [In the next place he must receive, relieve, comfort or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, a house or other shelter to conceal him, or open force and violence to rescue or protect him (z). So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. 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 (a). Again, to buy or receive stolen goods, does not fall within the knowing them to be stolen,] But this alone would perhaps not suffice to make A. accessory to the murder. (t) Hawk. P. C. b. 2, c. 29, s. 22. (u) Ibid. s. 20. (a) 1 Hale, P. C. 618. (y) Hawk. P. C. b. 2, c. 29, s. 32. |