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CHAPTER XXVI.
CRIMINAL OFFENSES.

Counts-MARTIAL, by the 62d Article of War, have at all times a jurisdiction of “all crimes not capital which officers and soldiers may be guilty of to the prejudice of good order and military discipline; ” by the 60th Article, of offenses, such as perjury, forgery, etc., under certain circumstances; and by the 58th Article, in time of war, of a large number of offenses cognizable, in time of peace, only by the civil courts. But few of these offenses have been defined by Congress, and recourse must therefore be had to the common law for their meaning." Offenses Defined and Classified. An offense which may be the subject of criminal procedure, is an act committed or omitted in violation of public law, either forbidding or commanding it to be done. Offenses, at common law, are divided into three heads; treasons, felonies and misdemeanors. Treason. The Constitution provides that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and that “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

* U. S. vs. Magill, 1 Wash. C. C. R. 453, U. S. vs. Jones, 3 Wash. C. C. R. 209.

* Article III, § 3, Clause 1, Revised Statutes, § 5331.

Misprision of Treason. Every person owing allegiance to the United States, and having knowledge of the commission of any treason against them, who conceals, and does not, as soon as may be, disclose and make known the same to the President, or to some judge of the United States, or to the governor, or to some judge or justice of a particular State, is guilty of misprision of treason." Felonies. A felony originally was an offense which occasioned a total forfeiture of either land or goods, or both, at the common law, and to which capital or other punishment might be added according to the degree of guilt.” Forfeiture for crime having been generally abolished in the United States, the term felony, in American law, has lost this point of distinction; and its meaning, where not fixed by statute, is somewhat vague and undefined; generally, however, it is used to denote an offense of a higher grade, punishable either capitally, or by a term of imprisonment in the state's prison, and no other, is a felony.” o Wharton says: “At common law, in addition to the crimes more strictly coming under the head of treason, the chief, if not the only felonies, were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny. In this country, with a few exceptions, the common law classification has obtained; the principal felonies being received as they originally existed, and their number being increased as the exigencies of society prompted." Misdemeanors comprise all offenses lower than felonies which may be the subject of indictment. Parties to Crimes are divided into principals and accessaries. Principals. The word principal is used in opposition to accessary to show the degree of crime committed by two persons. A person may be a principal in an offense in the first or second degree. First Degree. A principal in the first degree is one who is the actor or actual perpetrator of the fact. It is not necessary that he should have committed the act with his own hands, or be actually present when the offense 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. If he acts through the medium of an innocent or insane medium, he is guilty as a principal in the first degree. Second Degree. A principal in the second degree is one who is present, aiding and abetting, at the commission of the fact. To constitute principals in the second degree there must be, in the first place, a participation in the act committed; and, in the second place, presence either actual or constructive, at the time of its commission. It is not necessary that the party should be actually present, an eye or ear 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 occasion arise. Thus, if he be outside the house watching to prevent surprise, or the like, whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree." A party charged as a principal in the second degree may be convicted, though the party charged as principal in the first degree is acquitted. So on an indictment for murder, the court may, in their discretion, try the

* $5333, Revised Statutes. * Bouvier's Law Dictionary. * Webster's Dictionary. * $2.

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principal in the second before the principal in the first degree." Accessaries. An accessary is one who is not the chief actor in the perpetration of the offense, nor present at its performance, but in some way concerned therein, either before or after the fact committed. Before the Fact. An accessary before the fact is one who, being absent at the time of the crime committed, yet procures, counsels, or commands another to commit it. Absence is necessary. He who in any wise commands or counsels another to commit an unlawful act is accessary to all that ensues to that unlawful act; but is not accessary to any act distinct from the other. There can be no accessaries before the fact in those offenses which by judgment of law are sudden and unpremeditated, as manslaughter and the like.” When Triable. At common law, accessaries before the fact cannot be punished until the guilt of the principal offender is established. After the Fact. An accessary after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts or assists the felon. It is, in the first place, requisite that he knows of the felony committed; secondly, it must be complete at the time of the assistance given; and thirdly, he must receive, relieve, comfort or assist the felon. And, generally any assistance whatever, given to a felon to hinder his being apprehended, tried, or suffering punishment, makes the assister an accessary.” There can be no accessaries before or after the fact in treason, or any offenses under the degree of felony; all persons concerned in these offenses, if guilty at all, are principals. 1 Wharton, $130. * 4 Blackstone, §§ 36–37. * Ibid, § 38.

The 27th Article of War provides that all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals and punished accordingly. Mere presence at a duel, as a spectator, would not render the party an accessary to the duel. Punishment. It is the general rule that accessaries shall suffer the same punishment as principals. Accomplices. This term includes in its meaning every person who has been concerned in the commission of crime, every particeps criminis, whether he is considered, in strict legal propriety, as a principal in the first or second degree, or merely as an accessary before or after the fact. We now come to the meaning of the different offenses, as defined at common law : Larceny is the wrongful and fradulent taking and carrying away, by one person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) use, and make them his property without the consent of the owner. To constitute larceny several ingredients are necessary : (1) There must be a taking from the possession, actual or implied, of the owner; hence, if a man finds goods, and appropriates them to his own use, he is not a thief on this account. The taking must be against the will of the owner, and this may be in some cases where he appears to consent; for example, if a man suspects another of an intent to steal his property, and in order to try him leaves it in his way, and he takes it, he is guilty of larceny. Where an offender unlawfully acquires possession of goods with an intent to steal them, the owner still retain

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