combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. (1) Also, if A. counsel B. to manufacture the paper, C. to engrave the plate, and D. to fill up the names of a forged or counterfeit note, and they do so-each without knowing that the others are employed for that purpose, B., C., and D. may be indicted for the forgery as principals, and A. as accessary. (m) For if several make distinct parts of a forged instrument, each is a principal, though he do not know by whom the other parts are executed, and though it is finished by one alone in the absence of the others.(n)

There must be a participation in the act, to render one a principal in the second degree; for though he be present while a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavor to prevent the felony, or apprehend the felon.(0)

It is not necessary, however, to prove that the party actually aided in the commission of the offence. If he watched for his companions in order to prevent surprise, or remained at a convenient distance, to favor their escape, if necesary; or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give them additional confidence; in these and similar cases, he will be regarded as present, aiding and abetting. So a participation, the result of a concerted design to commit an offence, is sufficient to render a person a principal in the second degree. Thus, if several act in concert, to steal a man's goods, and he is induced by fraud to trust one of them with the possession of the goods, in the presence of the others, and then another of the party entice the owner away, that he who has the goods may carry them off, all are guilty as principals.(p)

A mere participation in the act itself, without a felonious participation in the design, will not be sufficient to make one a principal in the second degree. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is merely manslaughter in the servant, but murder in the master.(q)

At common law, if one encourages another to commit suicide, and is present aiding and abetting him while he does so, such person is guilty

(1) Russ. & Ry. C. C. 446. Arch. Cr. Arch. Cr. Pl. 4. Doug. 207. Pl. 4. See 2 East's P. C. 768.

Cr. 22.

1 Russ. on

(p) Russ. & Ry. C. C. 305. Arch. Cr. Pl. 5. 1 Russ. on Cr. 24.

(q) 1 Hale's P. C. 446. Kel. 109. Fost. 350. Arch. Cr. Pl. 6. 1 East's P. C. 257.

of murder as principal. So if two persons encourage each other to self murder, and one kills himself, but the other fails in the attempt, the latter is a principal in the murder of the other. (r)

By the revised statutes, however, assisting another in the commission of self-murder, is only manslaughter in the first degree.(s)

The distinction between principals in the first and second degree is, in this state, practically of little or no importance; and much of the learning applicable to it has become comparatively useless, except so far as it may aid us in discriminating between principals and accessaries. For though it was once held that aiders and abettors were accessaries at the fact, and so could not be tried until the principal had been convicted, this notion has long been exploded. And in England, as well as in this country, it is settled by an unbroken current of authority, that those who are present aiding and abetting in a felony are not accessaries, but principals in the second degree, and may be arraigned and tried before the principal in the first degree has been dealt with. Indeed, they may be convicted though the principal in the first degree has been acquitted.(t)

Moreover, in respect to all mere misdemeanors, principals in the second degree might always be treated in the proceedings as principals in the first degree. The same rule also applies, in this state, to the whole range of felonies. For by the revised statutes, principals in the second degree in the commission of a felony are visited with the same punishment as principals in the first. (u) And as a consequence of this provision, it follows that principals in the second degree may be prosecuted as principals in the first. This is the doctrine of the common law in regard to all cases where the punishment of principals in the first and second degrees is the same; (v) though aiders and abettors, or principals in the second degree, may be proceeded against specially, as such, if the prosecutor chooses.(w)

Indictment.] In all felonies in which the punishment of principals in the first and second degrees is the same, the indictment may charge all who are present and abet the act, as principals in the first degree ;(x) provided the offence admits of participation. (y) But where the punishment is different, then principals in the second degree must be indicted specially, as aiders and abettors.(z)

(r) Russ. & Ry. C. C. 523. Moody's C. ch. 25, § 64. See 9 Coke's Rep. C. C. 356. 13 Mass. R. 356.

(s) 2 R. S. 661, § 7.

(t) Arch. Cr. Pl. 6. 1 Russ. on Cr. 21. 2 Hawk. P. C. 312. Fost. 347. 1 Bay's Rep. 488. 1 Overton, 230.

(u) 2 R. S. 698, § 6.

(v) Arch. Cr. Pl. 6. 2 Hawk. P.

67, b.

(w) Arch. Cr. Pl. 6.

(x) 2 Hawk. P. C. ch. 23, § 76. 3T R. 105.

(y) Fost. 345.

(z) Matt. Dig. Cr. L. 6.

CHAPTER II.

Accessaries.

1st. ACCESSARIES before the fact.] An accessary before the fact is, according to Sir Matthew Hale, one who being absent at the time of the commission of the offence doth yet procure, counsel, or command another to commit it. Absence is indispensably necessary to constitute one an accessary; for if he be actually or constructively present when the felony is committed, he is, as we have seen, (a) an aider and abettor, and not an accessary before the fact.(b)

In all felonies there may be accessaries, except in crimes which the law deems sudden and unpremeditated, as manslaughter, which therefore can have no accessaries before the fact. (c) And therefore, if A. be prosecuted for murder, and B. as accessary before the fact, if A. is found guil ty of manslaughter merely, B. must be acquitted. (d)

An accessary cannot be guilty of a higher crime than his principal.(e) A new felony created by statute has all the incidents it would have at common law. Therefore, the procurers or abettors are principals or accessaries upon the same circumstances which would make them so at common law; though the act be silent as to abettors or accessaries. (f)

It is settled that whoever procures a felony to be committed, if absent at the time of its commission, is an accessary before the fact.(g) The procurement may be personal, or through the intervention of a third person.(h) It may also be direct, as by hire, counsel, command, or conspiracy; or indirect, by evincing an express liking, approbation, or assent to another's felonious design, whereby he is encouraged to commit it.(¿) But the bare concealment of a felony to be committed, will not make

(a) Ante, p. 256.

(b) 1 Hale's P. C. 615. 1 Leach, 515.

1 East's P. C. 352. 4 Black. Com. 36, 7.

Arch. Cr. Pl. 7.

(c) 1 Hale, 615.

(f) 1 Leach, 76.

(g) 4 Black. Com. 37.

(h) Arch. Cr. Pl. 7. Fost. 125. 19 St. Tr. 804.

(i) 2 Hawk. P. C. ch. 29, § 16. Arch.

(d) Id. 347, 450, 616. Arch. Cr. Pl. 8. Cr. Pl. 7. (e) 3 lnst. 139.

the party an accessary before the fact. (k) Nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient.(1)

The procurement must be continuing; for if the procurer of a felony repent and actually countermand his order to commit it, before the of fence is perpetrated, he will not be deemed an accessary.(m)

If the accessory order or advise one crime to be committed, and the principal intentionally commit another, the accessary will not be answerable; as if he advise the principal to burn a house, and instead of doing so, the latter commit a larceny; or if he advise the principal to commit a crime against A., and he intentionally commits the same crime against B. ;(n) but if the principal commit the same offence against B. by mistake, instead of A., it seems it would be otherwise.(0)

At all events, it is clear that the accessary is liable for all that ensues upon the execution of his unlawful command or advice; as if A. command B. to beat C., and he beat him so that he dies, A. is accessary to the murder. (p) Or if A. command B. to burn the house of C., and in doing so, the house of D. is also burnt, A. is accessary to the burning of D.'s house. (q) So if the offence commanded be committed, though by different means from those prescribed by the command; for instance, if A. hire B. to poison C., and instead of poisoning he shoots him, A. is nevertheless liable as accessary. (r)

It is proper to observe, that it is only in felonies that there can be accessaries, either before or after the fact. All those, therefore, who in felonies would be accessaries before the fact, arc, in respect to offences below that degree, principals, and must be proceeded against as such.(s) So all are principals, it seems, in treason against the people of this state.(t)

With regard to the degree of incitement put in requisition by the accessary, in procuring the offence to be committed, no rule is laid down in the cases. That it was sufficient to effect the evil purpose, is proved by the result. On principle, it seems that any degree of direct incitement, with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessary. Hence it is

unnecessary to show that the crime was effected in consequence of such incitement; and it would be no defence to show that the offence would have been committed without any incitement. (u)

We have noticed before that words amounting to a bare permission will not render a man an accessary; as if A. says he will kill J. S., and B. says, "You may do your pleasure, for all me."(v)

There may be an accessary to an accessary before the fact; as if A. procure B. to murder C., and D. conceals A. from justice, D. becomes an accessary.(w)

The punishment of an accessary before the fact is the same as that of the principal.(x)

Indictment.] Where the indictment is for a felony at common law, it will be sufficient, after setting out the committing of the principal of fence, to charge that the defendant did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the principal to commit the crime.(y) Where the indictment is upon a statute, it is best to follow the words of the statute; but the offence may be described in equivalent terms. Words of the same legal import are sufficient. (2) A man may be indicted as accessary to one or to all of several principals; and if to all, he may be convicted on such indictment as accessary to one or some of them. (a) It is generally best to try the principal and accessary together. In that case, if the principal plead otherwise than the general issue, the accessary shall not be bound to answer until the principal's plea be first determined. (b) But if the general issue be pleaded, then the jury shall be charged first to inquire as to the principal; and if they find him not guilty, then to acquit the accessary; but if they find the principal guilty, then they are to inquire as to the accessary. (c)

In a case where the principal was indicted for a burglary and larceny in a dwelling house, and the accessary was charged in the same indictment as accessary before the fact, to the said "felony and burglary," and the jury acquitted the principal of the burglary, but found him guilty of the larceny, it seems the judges were of the opinion that the accessary should have been acquitted; for the indictment charges him as accessary to the burglary only, and the principal being acquitted of that, the accessary should have been acquitted also. (d)