Accessories.

365

AIDERS, ABETTORS, ACCESSORIES.

Misdemeanours] In misdemeanours there can be no accessories: Hale, 1 P. C. 613 (because in 'criminal but not capital' cases, 'as in trespass, mayhem or praemunire,' all accessories before are as principals, and those after, by receiving the offenders,' are only punishable if statutes 'expressly extend' to 'receivers or comforters"); 'all persons concerned therein, if guilty at all, are principals: 4 Bl. Com. 36; Greenwood, 2 Den. C. C. 453; L. J. M. C. 127; 5 Cox C. C. 521, 1852, overruling Else, R. & R. 142, 1808; and Page, 1841. Hence, when a woman indicted with a man convicted as a principal for indecent assault was found accessory after the fact,' c. q. (as in felony, Fallon): Bubb, 70 J. P. 143, 1906; and see De Marny.

Manslaughter-before] Also in manslaughter it has been said there can be no accessories before the fact, for the offence is sudden and unpremeditated-but cf. Taylor, 1875-and therefore, if A. be indicted for murder, and B. as accessory before, if the jury find A. guilty of manslaughter, they must acquit B.: 1 Hale, 437, 616, referring to Bibithe, 2 Rep. 43 b, 1597. In Gaylor, D. & B. C. C. 288; 7 Cox C. C. 253, 1857, where a wife voluntarily took poison, provided by the husband to procure abortion-in his absence and he was convicted (rightly, according to the C. for C. C. R.) of manslaughter, the above passages in Hale were relied on, but Erle J. said the solution' of Hale's dictum seems to be-'If the manslaughter be per infortunium or se defendendo, there is no accessory [before or after],' there are other cases in which there may be accessories.' Hale certainly thought there could be accessories after; and so Hawk. II. 29, 24. Cf. 9 Halsbury, Laws, &c. 254.

After] With respect to them it is now settled: Greenacre; Richards, 2 Q. B. D. 311; 46 L. J. M. C. 200; 13 Cox C. C. 611, 1877: C. C. R.; that persons harbouring and receiving a person indicted for murder but convicted of manslaughter become accessories to the manslaughter. See that title.

Forgery] It is said generally in the older books that in forgery all are principals, 2 East, P. C. 973; but this must, I think, be understood of forgery at common law,' which is a misdemeanour.

Treason] See that title, and Treason Felony.

Felonies principals in the second degree'] Aiding and abetting a person to commit a felony is in itself a substantive felony, whether the felony be such at common law or by statute: Tattersal, 1 Russ. Cri. 109, 1801.

An aider and abettor, who is present, is also called a principal in the second degree: The Coalheavers' case, 1 Lea. 64, 1768; Midwinter & Sims, Fost. C. C. 428, 1749. To be a principal in the second degree

he must be present: Soares, 2 East, P. C. 974; Russ. & Ry. 25, 1802; Davis, ib. 113, 1806; Badcock, ib. 249, 1810; and other cases of forgery in the same report; see that title. By presence is meant such contiguity as will enable the abettor to render assistance to the main design; it need not always be an actual immediate standing by, within sight or hearing of the fact: 4 Bl. Comm. 34. See under Murder and Completion of a Crime, in Index.

Common design-its extent] See this title under Manslaughter and Murder. Bare being present can never amount to an aiding and abetting: per Raymond C.J., Huggins, 1730. Of what constitutes the presence that makes a principal in the second degree, it is said: 'Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned to him; some to commit the fact, others to watch at proper distances and stations, to prevent a surprize, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it. Foster, C. C. 350. This is sometimes called 'constructive presence,' as by Blackstone, above. 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. Owen, 1 Moody C. C. 96, 1825. There must be a participation in the act. 'If A. and B. be fighting, and a man of full age comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide as principal in the second degree, but it is a misprision for which he shall be fined, unless he use means to apprehend the felon': 1 Hale, 439; Foster, 350. Thus the master assaults with malice prepense, the servant, being ignorant of the malice of his master, takes part with his master and kills the other, it is manslaughter in the servant and murder in the master.' 1 Hale, 446. And there must be felonious participation in the design. Where a smuggler fired a gun while the king's officers were resisting the attempt, and killed an accomplice, it was held murder in all the smugglers if he intended to kill an officer, but not if he intended to kill the accomplice. 1 East, P. C. 258; Plummer, Kel. 109; 12 Mod. 627, 1700.

And, generally where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers, employed by the messenger of the secretary of state to assist in the apprehension of persons, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods: was this felony in all? Holt C.J. said, That they were all engaged in an unlawful act is plain, for they could not justify breaking a man's house without making a demand first. Yet all those who were not guilty of the stealing were acquitted, notwithstanding their being engaged in one unlawful act of breaking the door; for this reason, because they knew not of such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands.' Anon., 1 Lea. 7 n., 1664; 2 Russ. Cri. 113 n. See also White, &c., R. & R. 99, 1806; Hawkins, 3 C. & P. 392, 1828; Whittaker, 1848. Three men went into a field to shoot with one rifle, and placed a target in a tree near some houses,

eight feet from the ground. They lay down on the ground, and each fired at it in turn. Their rifles were sighted to shoot 950 yards, and would probably be deadly at a mile. A boy in an apple-tree 393 yards off was killed by one of the shots; but it was uncertain which of defendants had shot him. They were all held to be guilty of manslaughter, no proper precautions having been taken. Salmon, 6 Q. B. D. 79; 50 L. J. M. C. 25; 14 Cox C. C. 494, 1880: C. C. R. It is perhaps open to doubt whether if only one had fired his rifle, all would have been equally guilty. L. Coleridge C.J. said, 'It was manslaughter in him who killed the boy-the death resulted from the action of the three, and they are all liable,' and Stephen J. said, 'all are responsible, for they unite to fire at the spot in question.'

Indictment] Where, as is generally the case, the punishment of principals in the first and second degree may be the same, indictments lay the fact generally as being done by all. For a case of rape where a woman was convicted as principal, see Ram, &c.

Principal not convicted] All who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be tried before the principal in the first degree has been found guilty, tho in point of discretion it is good to try them both together': 2 Hale, 223; and may be convicted, though the person so charged is acquitted. Taylor, 1 Lea. 360, 1785; Benson v. Offley, 2 Show. 510; 3 Mod. 121, 1688; Wallis, 1 Salk. 334, 1703; Towle, R. & R. 314; 3 Price, 145; 2 Marsh. 466, 1816. Cf. Hughes, 1860, followed in Goodspeed, 6 Cr. A. R. 133; 75 J. P. 232; 55 S. J. 273; 27 T. L. R. 255, 1911, where convictions for (1) being accessory (before) to a burglary, on a count for burglary, and (2) receiving property thereby stolen, were held not inconsistent.

Before the fact-bare concealment or permission—countermand] An accessary before is he that, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony, and it is an offense greater than the accessary after.' 1 Hale, P. C. 615. The bare concealment of a felony to be committed will not make the person concealing it an accessory before the fact, but guilty only of a misprision of felony.' 2 Hawk P. C. 2, 29, 23. So words amounting to a bare permission will not make B. an accessory, as if A. says he will kill J. S., and B. says, you may do your pleasure for me." 1 Hale, 616. The procurement must be continuing; for if before the commission of the offence by the principal, the accessory countermands him, and yet the principal proceeds to the offence, he who countermanded him will not be guilty as accessory, but had he not been in time he would still have been accessory. 1 Hale, P. C. 618. If the person was present when the offence was committed, he is not an accessory: Gordon, 1789; and he should be indicted as a principal. Brown, 14 Cox C. C. 144, 1878. Several persons may be convicted on a joint charge as accessories before the fact (uttering the will and inciting to forge it), though there is only evidence of separate acts done by each at different times and places. (Barber) Fletcher, &c., 1 C. & K. 442, 1844; but this decision is criticised 1 Russ. Cri. 136 n. To promise to accompany burglars in breaking in is enough to constitute an accessory, and merely not doing so is not a countermand: Goodspeed, above. But lending a man a jemmy, with the knowledge that it was intended for burglary, with

out knowing for what burglary (as the special verdict was), does not constitute the lender an accessory if the instrument is so used: Lomas, 9 Cr. A. R. 220; 23 Cǝx C. C. 765; 78 J. P. 152; 30 T. L. R. 125, 1913: c. q.; the C. C. A. expressed no opinion on the argument that assistance given with the knowledge that a crime is to be committed' makes an accessory. See under Misprision of Felony.

Before the fact-by intervention of a third person] A person may render himself an accessory by the intervention of a third person, without any direct communication between himself and the principal. Thus if A. bid his servant hire somebody to murder B., and furnish him with money for that purpose, and the servant hires C., a person whom A. never saw or heard of, who commits the murder, A. is accessory. It is a principle in law which can never be controverted that he who procureth a felony to be done is a felon.' If present he is a principal, if absent an accessory before the fact.' Fost. C. C. 125; see Macdaniel, ib. 121, cf. 130 and 131, 1755: this is not the case at 1 Lea. 44; 4 Hawk. P. C. 2, 29, 1, 11; Cooper, 1833.

Before the fact-degree of incitement] With respect to the measure of incitement and force of persuasion used, no rule is laid down; that it was sufficient to effectuate the evil purpose is proved by the result. In 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 accessory; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been committed although the incitement had never taken place.' 2 Stark. Ev. 9, 3rd ed. Where a man furnished a woman with corrosive sublimate under strong pressure from her, which she took with intent to procure abortion, but he did not instigate her to take it, and his conduct was consistent with his having hoped that she would change her mind, it was held that, even if she was felo de se, he was not a principal nor an accessory in murder. Fretwell, L. & C. 161; 31 L. J. M. C. 145; 9 Cox C. C. 152, 1862. So a mere holder of prizefight stakes, who was not present, but afterwards paid them over to the winner, was held not an accessory after to manslaughter of the man who was killed. Taylor, L. R. 2 C. C. R. 147; 44 L. J. M. O. 67; 13 Cox C. C. 68, 1875; and as, though he knew that there was to be a fight, he could not be accessory before, he was not guilty of any crime.

Encouragement by detectives, &c.—' traps' for criminals] See Innocent Agent in Index and Bannen; Holden; O'Callaghan; and Titley. Cf. Inducement.

Before the fact-felonies-principal varying from orders given him] The following rules are laid down by Sir Michael Foster. If the principal totally and substantially varieth, if being solicited to commit a felony of one kind, he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. . . . But if the principal in substance complieth with the temptation, varying only in circumstances of time, or place, or in the manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessary before the fact, if present, a principal. . . . A. commandeth B. to murder

Probable Consequences: Mistake.

369

C. by poison; B. doth it by a sword or other weapon, or by any other means; A. is accessary to this murder; for the murder of C. was the object principally in his contemplation, and that is effected.'

Probable consequence] So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary to that felony. A. upon some affront given by B. ordereth his servant to waylay him and give him a sound beating: the servant doth so, and B. dieth of this beating. A. is accessary to this murder..

A. soliciteth B. to burn the house of C.; he doth it, and the flames taking hold of the house of D., that likewise is burnt. A. is an accessary to this' felony. The principle in all these cases is, that though the event might be beyond the original intention of the accessory, yet, as in the ordinary course of things, that event was the probable consequence of what was done under his influence, and at his instigation, he is in law answerable. Foster, 369, 370; see also 1 Hale, P. C. 617 (who traces this doctrine to 1330); 4 Hawk. P. C. 2, 29, 18. Cf. under Arson.

But whether, where the principal by mistake commits a different crime, the party commanding or advising him shall stand excused, has been the subject of much discussion. It is said by Hale, ib. that if A. commands B. to kill C., and B. by mistake kills D., or else in striking at C. kills D., but misses C., A. is not accessory to the murder of D., because it differs in the person: citing 3 Inst. 51 and Saunders, Plow. Com. 473, 1573; see Murder; the facts of which case were: Saunders, to destroy his wife, by the advice of one Archer, mixed poison in a roasted apple and gave it to her to eat; she ate a small part of it, and gave the remainder to their child. Saunders making only a faint attempt to save the child, whom he loved and would not have destroyed, stood by and saw it eat the poison, of which it soon afterwards died. It was held that though Saunders was clearly guilty of the murder, yet Archer was not accessory to it.

On this point, Foster J., at 370, says: B. is an utter stranger to the person of C., and A. therefore takes upon himself to describe him by his stature, dress, &c., and acquaints B. when and where he may probably be met with. B. is punctual at the time and place, and D., a person in the opinion of B. answering the description, unhappily coming by, is murdered under a strong belief on the part of B. that he is the man marked out for destruction. Who is answerable? 'B. undoubtedly is: the malice on his part egreditur personam. And may not the same be said on the part of A.? The pit which he, with a murderous intention, dug for C., D., through his guilt, fell into and perished. For B., not knowing the person of C., had no other guide to lead him to his prey than the description A. gave of him. B. in following this guide fell into a mistake, which it is great odds any man in his circumstances might have fallen into. I therefore, as at present advised, conceive that A. was answerable for the consequences of the flagitious orders he gave; since that consequence appeareth in the ordinary course of things to have been highly probable. Foster J. then proposes the following criteria of the cases. 'Did the principal commit the felony he standeth charged with, under the influence of the flagitious advice; and was the event, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit