ignorant of it, knowingly receive a felon, she renders herself an accessary.(?) And so, if she incite her husband to commit a felony.(s)

If a married woman prosecuted jointly with her husband, be described in the proceedings as his wife, she need not offer any proof of marriage, in order to defend herself on the ground of his coercion; but will only need to show that she acted under his coercion.(t) If she be described as a single woman, she must prove her marriage. (u) But evidence of cohabitation and reputation is sufficient, without proving an actual marriage.(v)

(r) 1 Hale's P. C. 621. 1 Russ. on Cr. 19, note (m).

(8) Arch. Cr. Pl. 17. 1 Hale, 516. 2 Hawk. ch. 29, § 34.

(t) 1 Hale's P. C. 46. Arch. Cr. Pl. 17.

(u) Kel. 37. Arch. Cr. Pl. 37. 1 Russ. on Cr. 20.

(v) 1 Russ. on Cr. 20. Arch. Cr. Pl. 37. 2 Carr. & P. 434.

CHAPTER IV.

Exemption from Punishment, arising from Xgnorance or Mistake.

IGNORANCE OF MISTAKE is another defect of will which may exempt persons from punishment. It is a general rule, however, that ignorance of the law will not excuse any person of capacity enough to be responsible for his criminal acts; for all are presumed to know the law. (a) But ignorance or mistake of facts is in some cases allowed as an excuse for the inadvertent commission of crime; as if a man intending to kill a thief in his own house kill one of his own family: in this case he is guilty of no offence. (b) So in larceny, the criminal intent may, in many cases, be rebutted by showing that the goods were taken through mistake-the person accused supposing they were his. (c) And the same principle applies to a variety of cases ranging under the heads of accident or misfortune. It should be observed, however, that the rule alluded to proceeds upon the supposition that the original intention of the accused was lawful. For if an unforeseen consequence ensue from an act which was in itself unlawful and in its original nature wrong and mischievous, the actor is criminally responsible for whatever consequence may ensue.(d)

The rule also supposes an opportunity to know the law. Therefore, where a person was indicted for an offence under a statute, upon the high seas, shortly after the statute was passed and before notice of it could have reached the place where the offence was committed, the judges held that as he could not have been tried for the offence before that act, and as he could not have heard of it, he ought to be pardoned.(e)

In this state, however, to prevent the ignorance of a recent act from injuring a party, it is provided that no act of the legislature shall take effect until twenty days after it is passed, unless there be a special provision to the contrary.(f)

(a) 4 Black. Com. 27. 1 Russ. on Cr. 20. Arch. Cr. Pl. 17.

(b) 1 Hale's P. C. 42. 4 Black. Com. 27. 1 Russ. on Cr. 20.

(c) Roscoe's Cr. Ev. 471. 1 Hale's P. C. 507.

(d) 4 Black. Com. 27. Arch. Cr. Pl. 18.

(e) 1 Russ. & Ry. C. C. 1.

(ƒ) 1 R. S. 157, § 12.

BOOK IV.

Principals and Accessaries.

We propose, in this book, to speak of the several degrees of guilt among persons capable of offending. Every person amenable to criminal punishment is guilty either as principal or accessary. Principals are either principals in the first degree, or principals in the second degree. Accessaries also are divided into two classes, viz. accessaries before the fact, and accessaries after the fact.

CHAPTER I.

Principals.

1st. PRINCIPALS in the first degree.] A principal in the first degree is he that is the actor or absolute perpetrator of the crime. (a) He is usually present when the offence is consummated; but this is not necessary; 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. (b) Neither is it necessary that a person, to be guilty as principal in the first degree, should perpetrate the crime with his own hands; for if an offence be committed through the medium of an innocent agent, the employer of the agent, though absent when the act is

(a) 4 Black. Com. 33. 1 Hale's P. C. 233, 615.

(b) Arch. Cr. Pl. 4. Fost. 349. See 4 Car. & P. 369. 1 Hale, 617.

done, is answerable as a principal in the first degree. (c) Thus, if a child under the age of discretion, or any other person excused from responsibility for crimes by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of an offence, the incitor, though absent when the offence was committed, is liable for the act of his agent, and is a principal in the first degree.(d)

But if the instrument thus employed be aware of the consequences of his act, and responsible for it, he is a principal in the first degree; and the employer, if he be present when the fact is committed, is a principal in the second degree; or if he be absent, an accessary before the fact.(e) 2d. Principals in the second degree.] A principal in the second degree is one who is present, aiding and abetting at the commission of the crime.(f)

In order to constitute one a principal in the second degree, he must be present, either actually or constructively, at the commission of the crime. It is not necessary that he should be an ear or an 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 render it should the occasion arise. Thus, if he be outside the house, watching to prevent surprise whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree.(g) But he must be near enough to render assistance if required.(h) The mere circumstances of a party going towards a place where a felony is to be committed, in order to assist to carry 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 though an act be committed in pursuance of a preconcerted 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 accessaries before the fact.(k) But presence during the whole of the transaction is unnecessary. For instance, if several