§ 2772. Definition. The definition of an accessory as given by Mr. Blackstone is generally conceded to be correct and is almost universally followed. In defining it he says: "An accessory is he who is not the chief actor in the offense nor present at its performance, but is in some way concerned therein, either before or after the affair." On this subject Mr. Wharton says: "To constitute such an accessory, it is necessary that he should have been absent at the time when the felony was committed; if he was either actually or constructively present, he is, as has been seen, a principal." Whatever the resemblance between principal and accessories, it is the well established rule, where not changed by statute, that a person cannot be indicted as a principal and convicted on proof showing him to be only an accessory."

3

14 Blackstone Comm. 35; United States v. Hartwell, 3 Cliff. (U. S.) 221.

21 Wharton Cr. Law, § 225; 3 Greenleaf Ev. 42.

'1 Wharton Cr. Law, § 114, 208; Hughes v. State, 12 Ala. 458; Able V. Commonwealth, 5 Bush (Ky.)

698; Josephine v. State, 39 Miss. 613; Walrath v. State, 8 Neb. 80; State v. Larkin, 49 N. H. 39; State v. Wyckoff, 31 N. J. L. 65; Rex v. Fallon, 9 Cox Cr. Cas. 242; but under some statutes this is not the rule; Yoe v. People, 49 Ill. 410.

§ 2773. Principals and accessories.-Some writers make practically no distinction between principals in the second degree and accessories. If any distinction is made it seems to be in the cases where the principal in the second degree was physically present; whereas it is sufficient if an accessory is only constructively present. Mr. Wharton says: "Principals in the second degree are those who are 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." The rule has been extended to the point of holding that it is not necessary that the evidence should show any direct communication between the accessory and the principal."

§ 2774. Accessory before the fact.-Accessories in crime are divided into two classes: (1) Accessory before the fact; (2) accessory after the fact. An accessory before the fact is one "who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory." Another distinction is made thus: "To be a principal in either degree, there must be an actual or constructive presence at the commission of the offense. Advising its perpetration makes the advisor an accessory before the fact; receiving the stolen property, knowing it to be stolen makes the receiver accessory after the fact." Mr. Wharton says: "An accessory before the fact is one who, though absent at the time of the commission of the felony, doth yet procure, counsel, command or abet another to commit such felony." As defined by Mr. Bishop: "An accessory before the fact is a person whose will contributed to a felony committed by another as principal, while himself too far away to aid in the felonious act." Mr. Bishop concedes that the distinction between

1 Wharton Cr. Law, § 134; 1 Hale. P. C. 615; Able v. Commonwealth, 5 Bush (Ky.) 698; United States v. Hartwell, 3 Cliff. (U. S.) 221; Komrs v. People, 31 Colo. 212, 73 Pac. 25; Albritton v. State, 32 Fla. 358, 13 So. 955; State v. Beebe, 17 Minn. 241; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504; State v. Maxent, 10 La. Ann. 743.

the principal and an accessory before the fact is purely technical, and has no existence in natural reason or the ordinary doctrines of the law. By statute in many of the states all distinctions between principals and accessories have been abolished, and all persons participating in the commission of a felony, whether they are present, actively engaged in the act, or though absent, aid and abet its commission; and they may be indicted, tried and punished as principals."

§ 2775. Accessory after the fact.-There is a clear distinction between an accessory before the fact and an accessory after the fact. So the distinction between an accessory after the fact and a principal is clear. And an accessory after the fact is not to be charged simply as one receiving stolen goods. As defined in some statutes and by some courts an accessory after the fact "is a person who after full knowledge that a crime has been committed, conceals it from the magistrate and harbors, assists, or protects the person charged with or convicted of the crime." And as further stated by the same court: "In this classification of the offense, both at common law and under our statutes, the law contemplates some assistance or act done to the felon himself, and is distinct from receiving stolen goods from the felon, except such taking is for the purpose of facilitating his escape from justice, or attended with some benefit." The difference, therefore, between an accessory after the fact and a person receiving stolen goods is that the former renders some aid, assistance or protection to the principal while the latter does not.11

'1 Bishop Cr. Law (New), § 673; Hately v. State, 15 Ga. 346; Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56; Riggins v. State, 116 Ga. 592, 42 S. E. 707; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504; State v. Snell, 46 Wis. 524, 1 N. W. 225; Spear v. Hiles, 67 Wis. 361, 30 N. W. 511; Meister v. People, 31 Mich. 99; Unger v. State, 42 Miss. 642; People v. Katz, 23 How. Pr. (N. Y.) 93; People v. Wixon, 5 Park. Cr. Cas. (N. Y.) 119; McCarney v. People, 83 N. Y. 408; Phillips v. Tucker, 14 N. Y. St. 120; Usselton v. People, 149 Ill. 612, 36 N. E. 952; State v. Farr, 33 Iowa 553; State v. Poynier,

36 La. Ann. 572; State v. Hamilton, 13 Nev. 386; Warden v. State, 24 Ohio St. 143; Cook v. State, 14 Tex. App. 96; Ogle v. State, 16 Tex. App. 361; State v. Prater, 52 W. Va. 132, 43 S. E. 230; Hicks v. United States, 150 U. S. 442, 14 Sup. Ct. 144.

10 Griffith v. State, 90 Ala. 583, 8 So. 670; State v. Tally, 102 Ala. 25, 15 So. 722; State v. Cassady, 12 Kans. 550; Spies v. People, 122 Ill. 1, 12 N. E. 865.

114 Blackstone Comm. 37; 1 Hale P. C. 618; 1 Chitty 264; Loyd v. State, 42 Ga. 221; State v. Cassady, 12 Kans. 550; Able v. Commonwealth, 5 Bush (Ky.) 698; Tully v.

§ 2776. Accessory during the fact.-Some statutes define what is called an accessory during the fact. This is defined to be "a person who stands by without interfering or giving such help as may be in his power to prevent a criminal offense from being committed." Under such a statute the indictment must state and the proof must show that the accused had power to prevent the commission of the particular crime; they should show what it was in his power to do without placing himself in peril; or what act he failed to do which he might have safely done. Under such circumstances the law does not require a person to hazard his personal safety to prevent the commission of a crime. He is not required to expose himself to

danger.12

§ 2777. Proof of principal's guilt.-It is a primary and fundamental rule that under the common law or the statutes for punishing accessories, it is necessary that the guilt of the principal felon should be shown before an accused could be convicted as an accessory. For the same reason it was therefore necessary that the indictment against an accessory should be sufficient as to make it a good indictment against the principal.18 The rule as stated by some courts is that the conviction of the principal is essential to the guilt of an accessory at common law.1 Some statutes permit the indictment and conviction of the accessory where it appears that the principals could not be captured or prosecuted and convicted. In such cases before an accessory can be convicted the statute must show that a crime had been committed and that the principal could not be arrested. Before an accessory can be convicted under such stat

Commonwealth, 11 Bush (Ky.) 154; Harris v. State, 7 Lea (Tenn.) 124; 3 Greenleaf Ev., §§ 47-50.

12 Farrell v. People, 8 Colo. App. 524, 46 Pac. 841; State v. Hamilton, 13 Nev. 386.

13 Tully V. Commonwealth, 11 Bush (Ky.) 154; Stoops v. Commonwealth, 7 S. & R. (Pa.) 491; Buck v. Commonwealth, 107 Pa. St. 486; Armstrong v. State, 33 Tex. Cr. App. 417, 26 S. W. 829; Hatchett v. Commonwealth, 75 Va. 925; Ogden V. State, 12 Wis. 532, 592; Baxter v. People, 7 Ill. 578; Ray v. State, 13 Neb. 55, 13 N. W. 2; Ter

14

ritory v. Dwenger, 2 N. Mex. 73; Levy v. People, 80 N. Y. 327; State v. Duncan, 6 Ired. L. (N. Car.) 98; Self v. State, 6 Baxt. (Tenn.) 244; McCarty v. State, 44 Ind. 214; Simms v. State, 10 Tex. App. 131; Armstrong v. State, 33 Tex. Cr. App. 417, 26 S. W. 829; but see contra: State v. Mosley, 31 Kans. 355, 2 Pac. 782; State v. Bogue, 52 Kans. 79, 34 Pac. 410; State v. Patterson, 52 Kans. 335, 34 Pac. 784.

"Bowen, Ex parte, 25 Fla. 214, 6 So. 65; Bowen v. State, 25 Fla. 645, 6 So. 459.

utes it must be shown generally that the principal, whether taken or not or whether known or unknown, was guilty.15 But some statutes permit the arrest, prosecution and conviction of the accessory without reference to the question of the conviction of the principal; yet such statutes adhere to the rule of requiring the guilt of the principal to be proved.16 But the rule is that "any acts and conduct of the principal tending to show his own guilt is evidence of such guilt as against the accessory." The accessory may be tried before the conviction of a principal, but as above stated the proof must establish the guilt of the principal, and any evidence competent to show the guilt of the principal is admissible for that purpose on the trial of the accessory. 18 And it has been held that the proof must establish the guilt of the principal as well as that of the accessory beyond a reasonable doubt.19 The rule seems to be well established that the accessory may on his own behalf controvert the propriety or the correctness of the principal's conviction by the testimony of witnesses.20

$ 2778. Proof of principal's guilt-Record of conviction.-The rule as stated in the preceding section requires that the guilt of the principal be established. Any legitimate evidence which does this or which tends to establish his guilt is competent and admissible. And for the purpose of establishing the guilt of the principal it is now the general rule that a record of his conviction and sentence is admissible in evidence for this purpose.21 However, the rule is that such records of conviction are only prima facie evidence of the guilt of the principal. And the record of the conviction of the principal on a plea of guilty is not conclusive for any purpose connected with the

"Edwards v. State, 80 Ga. 127, 4 S. E. 268.

1 Vaughan v. State, 57 Ark. 1, 20 S. W. 588.

"Gill v. State, 59 Ark. 422, 27 S. W. 598; State v. Rand, 33 N. H. 216; Self v. State, 6 Baxt. (Tenn.) 244; Simms v. State, 10 Tex. App. 131.

1 Buck v. Commonwealth, 107 Pa. St. 486; Vaughan v. State, 57 Ark. 1, 20 S. W. 588.

Car.) 98; McCarty v. State, 44 Ind. 214.

21 Anderson v. State, 63 Ga. 675; Coxwell v. State, 66 Ga. 310; Groves v. State, 76 Ga. 808; Stripland v. State, 114 Ga. 843, 40 S. E. 993; Keithler v. State, 10 Sm. & M. (Miss.) 192; Levy v. People, 80 N. Y. 327; State v. Mosley, 31 Kans. 355, 2 Pac. 782; State v. Chittem, 2 Dev. L. (N. Car.) 49; West v.

"Poston v. State, 12 Tex. App. State, 27 Tex. App. 472, 11 S. W.

408.

State v. Duncan, 6 Ired. L. (N.

482; United States v. Hartwell, 3 Cliff. (U. S.) 221; People v. Gray, 25 Wend. (N. Y.) 465.