CHAPTER II.

OF THE DEGREES OF GUILT.

GENERAL REMARKS.

Section I.-PRINCIPALS IN THE FIRST DEGREE.

II.-PRINCIPALS IN THE SECOND DEGREE
III.-ACCESSORIES BEFORE THE FACT.

IV.-ACCESSORIES AFTER THE FACT.

V. PERSONS ATTEMPTING TO COMMIT OFFENCES. AND SOLICITING OTHERS TO ATTEMPT
THE COMMISSION OF THEM IN CASES WHERE THE OFFENCE IS NOT PERPETRATED.

In considering the participation which an offender may have in the crime committed, we find that he will be guilty either in the character of principal or accessory; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon according to the share which he takes in the crime.1 And as principai, the effender is either principal in the first degree or the second; and as accessory, he is either an accessory before the fact or an accessory after it.

The distinction between principals and accessories, only obtains in felonies, for in misdemeanors all are principals.2

At the common law there were also no accessories in treason,3 but it seems doubtful whether any such distinction is known to us.4

At the common law the rule also was that all were principals, and that whatever would make a man an accessory before the fact in felonies, would make him a principal in forgery, but this must be understood of forgery at common law, and where it was considered only as a nisdemeanor.5

In those offences which, in judgment of law, are sudden and

1 1 Arch. Cr. Pr., 12; 3 Inst. 21-438; 1 Hale, 233; Fost., 341; 12 Co., 812; Co. Lit., 57; Hawk., B. 2, ch., 29, § 1; 13 Ire., 114; Dalt. 9, ch. 161; 7 Serg. & Raw., 479; 3 Mass., 254; 6 Hill., 144.

35.

21 Arch. Cr. Pr., 12; Peo. v. Erwin, 4 Den., 129.

* 3 Inst., 21-438; 1 Hale, 233-613; Fost., 341; 2 Co. Lit., 57; 4 Blac. Com.,

U. S. v. Burr, 4 Cranch, 472-501; Davis' Cr. L., 38.

1 Russ. on Cr., 33; Moor, 666; 1 Seld., 312; 2 Hawk., ch. 29, § 2; 2 East. P. C., 973; 2 Leach, 1096.

unpremeditated, as manslaughter and the like, there cannot be any accessories before the fact.1

Neither are there any accessories in petit larceny on account of the smallness of the felony; all are principals; thus, one who sends another to commit petit larceny may be convicted as a principal, although the offence was committed in his absence.2

In misdemeanors there are no accessories, but all the guilty actors, whether present or absent at the commission of the offence, are principals, and should be indicted as such. An accessory cannot be tried before the trial and conviction of the principal offender.1

SECTION I.

PRINCIPALS IN THE FIRST DEGREE.

The general definition of a principal in the first degree is one who is the actor or actual perpetrator of the crime.5

7

At the common law the rule was, that principals in the second degree might be prosecuted as principals in the first, where the punishment was the same; and, by our statute, principals in the second degree, in the commission of felonies, are subjected to the same punishment as those in the first degree. This was also the rule in cases of misdemeanors at the common law. Hence, much of the learning laid down in the books, distinguishing between principals in the first or second degree, is practically of little or no importance, except so far as the same may be necessary to distinguish between principals and accessories.

(a) The act need not have been done with the offender's own

1 1 Russ. on Cr., 33; 4 Blac. Com., 36; 1 Hale, 615; 2 Hawk., P. C., ch. 29,

§ 24.

Ward v. Peo., 6 Hill, 144; affg. 3 Id. 395.

Peo. v. Erwin, 4 Den., 129; Vide, 2 Hill, 558.

Baron v. Peo., 1 Park., 246.

4 Blac. Com., 33; 1 Hale, P. C., 233, 615.

2 Hawk., P. C., ch. 23, § 26; ch. 25, § 64; 9 Co. Rep., 67, ch. 3 T. R., 105;

hands, for if an offence be committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal in the first degree.1 And this is so even where the offence is committed within this State, by means of an innocent agent, and the employer did no act in this State, and was, at the time the offence was committed, in another State.2

Thus, if a child under the age of discretion or any other instrument, excused from the responsibility of his actions by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of murder or other crime, the inciter, though absent when the act was committed, is ex necessitate liable for the act of his agent, and a principal in the first degree.3 And this is on the common law principle, qui facit per alium facit per se, which, according to the late Chief Justice HOSMER, of Connecticut, is of universal application both in criminal and civil cases.4

(b) It is not necessary that the perpetrator should be actually present when the offence is consummated. This we have already seen to be the rule in some instances, but it is equally applicable in others. Thus, if a murder is committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail to prove fatal, as by laying a trap or pitfall for another, whereby he is killed; turning out a wild beast to do mischief, exciting a madman or child to commit murder, laying poison purposely for another who takes it, so that death thereupon ensues, or sending forged paper through the mail to a broker, to be presented and collected; the party offending is a principal in the first degree.5

1 R. v. Giles, 1 Mod. C. C., 166; 2 Mood, 120; 9 C. & P., 356; 1 Comstock, 173; 3 Denio, 190.

Adams v. Peo., 1 Com., 173.

Fost., 349; Hawk., ch. 31-37; R. v. Palmer, 1 W. R., 96; 2 Leach, 978.

1 Arch. Cr. Pl., § 12, notes.

Vaux's case, 4 Co., 44, b.; Fost., 349; 4 C. & P., 269; 4 Cranch, 470; 1 Hale, 514; 4 Blac. Com., 35; Hawk. B., 2, ch. 29, § 11; Chit. Cr. L., vol. 1, 257; 21 Wend., 509; 8 Am. Jur., 69.

SECTION II.

PRINCIPALS IN THE SECOND DEGREE.

Principals in the second degree, are those who are present aiding and abetting at the commission of the crime. They are generally termed aiders and abettors, and sometimes accomplices, but the latter appellation will not serve as a term of definition, as it includes all the particeps criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.1

The distinction between principals in the first and principals in the second degree, appears to have been unknown to the ancient writers upon the criminal law, who considered the persons present aiding and abetting, in no other light than as accessories at the fact, but as such accessories they were not liable to be brought to trial till the principal offender should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed, and with a view to obviate this mischief, the judges by degrees adopted a different rule, and at length it became settled law, that all those who are present aiding and abetting when a felony is committed, are principals in the second degree. For a felony may be com. mitted by a person constructively present, though not actually present; but to be constructively present he must be of the party, and do some act in execution of the common design, or be near enough to the scene of operation to assist in carrying it out, or to aid those who are immediately engaged in it to escape, should necessity require.3

2

So to constitute principals in the second degree, three requisites must combine; they must be present, aiding and assisting, and with a felonious intention to the crime.4

(a) They must be present, and this presence may be either

actual or constructive.

1 1 Russ. on Cr., 26; Fost., 341.

* I Russ. on Cr. 26; 1 Leach, 66; Fost. 428; Russ. & Ry., 314-363; 1 Chit. Cr. L., 256; Matt. Dig., 4; 1 Arch. Cr. Pl., 4.

• Wixson v. People, 5 Park., 119.

1 Arch. Cr. Pl., § 12, note; 1 Hale, 438-439-446; Fost., 349-350; 1 Chit. Cr. L., 256; R. v. Soare et R. v. Davis, Russ. & R., 99-29-113; Leach, 360.

It is not necessary that the presence should be a strict actual, immediate presence, such a presence as would make the party an eye or ear witness of what passes, but it may be a constructive presence, such as being near and ready to render assistance if necessary, or the occasion should arise; that is such contiguity as will enable the party to render assistance in the main design.1

With regard to what will constitute such a presence as to render a man a principal in the second degree, it is said by Mr. Justice FOSTER, that if several persons set out together, or in several parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him, some to commit the act, others to watch at proper distances to prevent a surprise, or to favor, if need be; the escape of those who are immediately engaged, they are all, provided the act be committed, in the eye of the law, present at it.2

Thus, where A waits under a window while B steals articles in the house, which he throws through the window to A, the latter is a principal in the offence.3

The party must also be so near as to be able to assist in the crime. Thus going towards the place where the felony is to be committed, in order to assist in carrying off the property, and assisting accordingly, will not make the party a principal, if he was at such a distance at the time as not to be able to assist in taking it; for where the prisoner and A went to steal two horses, and left the prisoner half a mile from the place where the horses were, and brought the horses to him, and both rode away with them, upon a case reserved, the judges thought the prisoner an accessory only, and not a principal, because he was not present at the original taking.*

It is not essential that the party should be present during the whole of the commission of the offence. Thus, if several execute distinct parts of a forged instrument, in pursuance of a common design, they are all principals, though they are not together

Ros. Cr. Ev., 6th ed., 168; 1 Russ. on Cr., 26.

Foster, 350; Ros. Cr. Ev., 6th ed., 168; 1 Russ. on Cr., 26.

Rex v. Owen, East. T., 1825; 1 Moody, 96. Vide 9 Pick., 496–516; 4 Cranch., 1 Russ. on Cr., 26; Ros. Cr. Ev., 168; Fost., 347; 1 Devy, 207. 1 Russ. on Cr. 28; Rex v. Kelley, Russ. & Ry., 421. Vide 6 Pick., 496.

492;