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A treatise on the criminal law of the United States online

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§ 112.] PRINCIPAL AND ACCESSARY : [BOOK I.

cipal in the first d^ree. A; If he acts through the medium of an
innocenty or insane medium, z or a slave, a he is guilty as prin-
cipal in the first degree. Thus, in Sir William Courtney's case,
Lord Denman, C. J., charged the jury : " You will say whether
you find that Courtney was a dangerous and mischievous person ;
that these two prisoners knew he was so, and yet kept with him,
aiding and abetting him by their presence, and conferring in
his acts ; and if you do, you will find them guilty, for they are
then liable as principals for what was done by his hand."i If
the principal were insane when the act was committed, no one
could be convicted as an aider or abettor. <? If a child under the
age of discretion, or any other instrument excused from the
responsibility of his actions by defect of understanding, igno-
rance of the fact, or other cause, be incited to the commission of
murder or any other crime, the inciter, though absent when the
fact was committed, is ex necessitate liable for the act of his
agent, and a principal in the first degree. e2 So if A., by letter,
desire B., an innocent agent, to write the name of " W. S." to a
receipt on a post-office order, and the innocent agent do it, be-
lieving that he is authorized so to do, A. is a principal in the
forgery ; and it makes no difference that by the letter A. says to

B. that he is " at liberty " to sign the name of W. S., and does
not in express words direct him to do so. But if A., before the
date of the letter sent to B., received by post a letter of an
earlier date, purporting to have come from W. S., and bearing
post-marks of earlier date, from which it may be inferred that
he was authorized to make use of the name of W. S., the coun-
sel of A., on his trial for the forgery, is entitled to state the con-
tents of that letter, and to give it in evidence, with a view of
showing that A. hand fide believed that he had the authority of
W. S. for directing B. to sign the name of W. S. to the re-
it; Vaux'8 case, 4 Co. 44 b; Fost. z 1 Hale, 19; 4 Bla. Com. 23; R.

349 ; K. r. Harley, 4 C. & P. 369 ; 4 v. Giles, 1 Moody C. C. 166.
Cranch, 492. See Green v. State, 13 a Berry t7. State, 10 Georgia, 511.
Mo. 382. h Hawk. c. 1, s. 7; R. v. Mears, 1

y R. V, Clifford, 2 Car. & Kir. 201 ; Boston Law Rep. 205.
Com. V. Hill, 11 Mass. 86 ; Adams x\ c R. v. Tyler, 8 Car. & P. 616.
People, 1 Comstock, 173; R. » Ma- d Fost. 840; 1 East P. C. 118;

zeau, 9 C. & P. 676; R. V. Michael, 9 1 Hawk, c. 31, s. 7 ; R. v. Palmer, 1

C. & P. 356. N. R. 96 ; 2 Leach, 978 ; Com. v. Hill



11 Mass. 136.



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BOOK I.] PRINCIPALS IN THE SECOND DEGREE. [§ 116.

ceipt. e But, if the instrument be aware of the consequences of
his act, he is a principal in the first degree, and the employer, if
he be absent when the fact is committed, is an accessary before
the fact./

§ 113. While all who are present, aiding and abetting him
who inflicts the mortal blow, in case of murder, are principals
and criminals in the highest degree, it is not every intermed-
dling in a quarrel or aflfray from which death ensues, that con-
stitutes an aiding and abetting to the murder. If, for instance,
two men fight on a former grudge and of settled malice, and
with intent to kill, of which the spectators are innocent, and they
of a sudden take sides with the combatants and encourage them
by words, and death ensue, it will not be murder in such per-
sons.^

§ 114. One indicted as principal cannot be convicted on proof
showing him to be only an accessary before the fact, h

(6.) Non-resident Principal.

§ 116. A non-resident principal, though at the time an inhab-
itant of a foreign state, may be liable for his agent's criminal acts
in a particular jurisdiction, i

2. Prindpdls in the Second Degree.

(a.) Who are.

§ 116. Principals in the second degree are those who 'are pres-
ent aiding and abetting at the commission of the fact. To con-
stitute 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 com-
mission. But although a man be present whilst a felony is com-
mitted, if he take no part in it, and do not act in concert with
those who commit it, he will not be a principal in the second
degree, merely because he did not endeavor to prevent the felony,

e R. V. Clifford, 2 Car. & Kir. 201. A Hughes v. State, 12 Ala. 458;

/ R. V. Stewart, R. & R. 868; or, Josephine t;. State, 89 Mississip. 618;

if he be present, a principal in the sec- State v. WyckoflT, 2 Yroom, 65 ; R. v.

ond degree. Fost. 849. Fallon, 9 Cox C. C. 242; Centre ¥oe

g State v. King et al 2 Rice's S. v. People, 49 111. 410.
C. Digest, 106. t Fost, § 210 m.

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§ 118.] PKINCIPAL AND ACCESSARY : [BOOK I.

or apprehend the felon, y Something must be shown in the con-
duct of the bystander, which unmistakably evinces a design to
encourage, incite, approve of, or in some manner afford aid or
consent to the act./^ 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 re-
mained at a convenient distance in order to favor their escape, if
necessary, or was in such a situation as to be able readily to come
to their assistance, the knowledge of which was calculated to
give additional confidence to his companions, in contemplation of
law he was aiding and abetting, k

He who attempts to strike with a deadly weapon one who is
at the same time struck by another with another deadly weapon,
is joint principal in the offence, k^

§ 117. If a principal in a transaction be not liable under our
laws, another cannot be charged merely for aiding and abetting
him, unless the other do acts himself which render him liable as
principal. I

(6.) Confederacy esserUial.

§ 118. Any participation in a general felonious plan, provided
such participation be concerted, and there be constructive pres-
ence, is enough to make a man 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 in the presence of the
others, with the possession of the goods, 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, m So, it has be^n holden,
that to aid and assist a person to the jurors unknown, to obtain
money by ring-dropping, is felony, if the jury find that the pris-
oner was confederate with the person unknown to obtain the
money by means of this practice, n But the act must also be the
result of the confederacy ; and if several are out for the purpose
of committing a felony, and upon an alarm run different ways,

J 1 Hale, 439 ; Fost 360 ; Con- k Jerv. Arch. 4; Thompson 9. Com.

naughty v. State, 1 Wise. 169. Butler 1 Mete. (Ky.) 13.

V. Com. 2 Duvall, 435; Plummer v. k^ King v. State, 21 Geo. 220.

Cop. 1 Bush (Ky.), 76 ; People v. Ah I JJ. S. ». Libby, 1 W. & M. 221.

JE^g, 27 Cal. 4S9. m R. t7. Standley, R. & R. 305 ; 1

/I Connaughty v. State, 1 Wise. Buss. 24; R. ». Passey, 7 C. & P. 282 ;

169. ^ R. V. Lockett, Ibid. 300.



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n R. V. Moyre, 1 Leach, 314.



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BOOK l] duelling. [§ 121.

and one of them maim a pursuer to avoid being taken, the others
are not to be considered principals in such act. o When H. and S.
broke open a warehouse and stole thereout thirteen firkins of but-
ter, &c., which they carried along the street thirty yards, and
then fetched the prisoner who was apprised of the robbery, and
he assisted in carrying the property away ; he was held not a
principal, the felony being complete before he interfered.^

§ 119. It was once held in England not to make a person a
principal in uttering a forged note, that he came with the utterer
to the town where it was uttered, went out with him from the inn
at which they had put up a little before he had uttered it, joined
him again in the street a short time after the uttering, and at
some little distance from the place of uttering, and ran away
when the utterer was apprehended, y

Such is still undoubtedly the law where the offence is a felony,
for then such an accomplice must be indicted as an accessary.
But where it is a misdemeanor, he must be indicted as a prin-
cipal, r

§ 120. If A. is charged with offence, and B. is charged with
aiding and abetting him, it is essential to make out the charge as
to B., that B. should have been aware of A.'s intention to commit
murder. «

(<?.) Duelling,

§ 121." In the case of murder by duelling, in strictness, both the
seconds are principals in the second degree ; yet Lord Hale con-
siders that, as far as relates to the second of the party killed, the
rule of law, in this respect, has been too far strained ; and he seems
to doubt whether such second should be deemed a principal in
the second degree, f But all persons present at a prize fight,
having gone thither for the purpose of seeing the prize-fighters
strike each other, are principals in the breach of the peace, te

o B. 0. White, Buss. & R. C. C. 99. £q. 535 ; 2 Den. C. C. 458 ; post, §
p R. 9. King, Ru88. & R. C. C. 382. 131.
R. tf. McMakin, Russ. & R. C. C. n^. a R. v. Cruse, 8 C. & P. 541.

q R.o.DaTi8, Russ. &R. C.C.I 18; t 1 Hale, 422, 452; post, § 959,
and see R. o. Else, Russ. & R. C. C. 990, 996.

142. tt R, r. Perkins, 4 C. & P. 587 ; R.

r R. v. Greenwood, 9 £ng. Law & v. Murphy, 6 C. & P. 103 ; R. v» Young,

8 C. & P. «46.

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§ 122.] PRINCIPAL AND ACCESSARY : [BOOK I.

(rf.) Suicide.
§ 122. If one encourage another to commit suicide, and is pres-
ent aiding him while he does so, such person is guilty of muixier
as a principal ; and if two encourage each other to murder them-
selves, and one does so, the other being present, but the latter
t fail in an attempt upon himself, he is principal in the murder of
the first ; but if it be uncertain whether the deceased really killed
himself, or whether he came to his death by accident before the
moment when he meant to destroy himself, it will not be murder
in either, v Whether the advice of the defendant was the exclusive
cause of the suicide is, it seems, immaterial. Thus, in an early case
in Massachusetts, u^ it was said by Parker, C. J., in charging
the jury, " The important fact to be inquired into is, whether the
prisoner was instrumental in the death of Jewett (the deceased),
by advice or otherwise. The government is not bound to prove
that Jewett would not have hung himself had Boweri% counsel
never reached his ear. The very act of advising to the commis-
sion of a crime is, in itself, unlawful. The presumption of law
is, that advice has the influence and effect intended by the ad-
viser, unless it is shown to have been otherwise: as that the
counsel was received with scoff, or was manifestly rejected and
ridiculed at the time it was given." All present at the time of
committing an offence are principals, although only one acts, if
they are confederates, and engaged in the common design of
which the offence is a part, re Where, however, the act is done in
the absence of the party who incites it, the latter has been held
in England not to be amenable to indictment as a principal be-
cause he was not present ; nor as an accessary before the fact at
common law, because the principal cannot be convicted ; nor as
guilty of a substantive felony under 7 Geo. 9; c. 64, s. 9, be-
cause that statute is to be considered as extending to those per-
sons only who, before the statute, were liable either with or aiter
the principal, and not to make those liable who before could
never have been tried, y. But by subsequent statutes the law in
this respect is materially changed, y^

t7 R. V. DyBon, Russ. & R. C C. 528 ; x Green t7. State, 18 Mo. 882. See

R. r. Russell, 1 Moody C. C. 856 ; R. post, § 184 a.

V. Allison, 8 C. & F. 418. y See R. t;. Leddington, 9 C. & P.

U7 Com. V. Bowen, 18 Mass. 859 ; 79 ; R. v. Russell, 1' Moody C. C. 856.

see Wharton's Preced. 107. y* Post, § 964.
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BOOK I.] CONSTRUCTIVE PRESENCE ENOUGH. [§ 124.

{e.) Forgery.
§ 123. If several 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 never-
theless all guilty as principals. 2 As if A. counsel B. to make
the paper, C. to engrave the paper, D. to fill up the names of a
forged note, and they do so, each without knowing that the others
are employed for that purpose, B., C, and D. may be indicted
for forgery, and A. as an accessary ; a 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 other, b

(/.) Constructive Presence enough.

§ 124. There must be presence, either actual or constructive,
at the time of the commission of the offence. It is not neces-
sary that the party should be actually present, an ear or 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 afford it, should the occasion arise. Thus,
if he be outside the house, watching to prevent surprise, or the
like, whilst his companions are in the house committing the fel-
ony, such constructive presence is sufficient to make him a prin-
cipal in the second degree, c One who keeps guard while others
act, thus assisting them, is, in the eyes of the law, present and
responsible, as if actually present, d If several act in concert to
steal a man's goods, and he is induced by fraud to trust one of
them in the presence of the others, with the possession of such
goods, and another of them entices him away, that the man who
has the goods may carry them off, all are guilty of felony as

zU. V, Bingley, Russ. & R. C. C. C. 96 ; Com. v. Knapp, 9 Pick. 496 ;

446; R. V. KeWey, Rubs. & R. C. C. State v. Hardin, 2 Dev. & Bat. 407;

421. State v. Coleman, 5 Porter, 82.

a R. r. Dale, Moody C. C. 307. d State 0, Town, Wright's Ohio R.

6 R. V. Kirkwdod, Moody C. C. 804. 75; Com. v. Lucas, 2 Allen, 170;

c Post. 847, 850; see R. v. Borth- Breese v. State, 12 Ohio St. R. 146;

wick et al. 1 Doug. 207 ; 1 Leach, 66; Doan v. State, 26 Ind. 495 ; State v.

2 Hawk. c. 29, 8. 7, 8; 1 Russ. 81 ; 1 Squaires, 2 Nev. 226; Selvidge v.

Hale, 555 ; R. v. Gogcrly, Russ. & R. State, 80 Texas, 60.
C. C. 843 ; R. V. Owen, 1 Mood. C.

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§ 126.] PBINCIPAL AND ACCESSARY : [BOOK I.

principals, e In case of stealing in a shop, if several are acting in
concert, some in the shop and some out, and the property is
stolen by one of those in the shop, those who are on the outside
are equally guilty as principals, in the offence of stealing in a
shop./ There are other cases, where a party absent may be
liable as principal: as he that puts poison into anything to poi-
son another, and leaves it, though not present when it is taken;
so it seems all that are present when the poison is so infused, and
consenting thereto, are principals, g Turning out a wild beast
with intent to do mischief, so that thereupon death ensues, the
party offending is guilty of murder as a principal, h

§ 125. A person, however, is not constructively present at an
overt act of treason, unless he be aiding and abetting at the fact,
or ready to do so if necessary. %

§ 126. Persons not suflSciently near to give assistance, are not
principals. Thus, where Brighton uttered a forged note at Ports-
mouth, the plan was concerted between him and two others, to
whom he was to return, when he passed the note, and divide the
produce. The three had before been concerned in uttering an-
other forged note; but at the time this note was uttering in
Portsmouth, the other two stayed at Gosport. The jury found all
three guilty, but, on a case reserved, the judges were clear that
as the other two were not present, nor sufficiently near to assist,
they could not be deemed principals, and, therefore, they were
recommended for a pardon.^ Going towards the place where
a felony is to be committed, in order to assist in carrying off the
property, and assisting accordingly, will not make a man a prin-
cipal, if he were at such a distance at the time of the felonious
taking as not to be able to assist in it. k And although an act be
committed in pursuance of a previous concerted plan between the
parties, those who are not present, or so near as to be able to

e R. V. Standley, Russ. & R. C. C. j R. v. Soares, AtJcinson, & Brigb-

305. ton, 2 East P. C. 974 ; Russ. & Ry. C.

/ R. V. Gogerly, Russ. & Ry. C. C. C. 25, S. C. ; and see R. v, Stewart

343 ; and see R. v. Owen, 1 Ry. & M. and others, Russ. & R. C. C. 368 ; R.

C. C. 96 ; R. V. Borthwiek, 1 Dougl. v, Badcock and others, Russ. & R. C.

207. C. 249 ; R. v. Manners, 7 C. & P. 801.

g Hale's Sum. 216. Post, § 1449.

h Fost. 349 ; 1 Hale, 514. k K v, Kelly, R. & R. 421.

i United States v. Burr, 4 Granch,
492.

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BOOK I.] BIOTS AND BIOTOUS HOMICIDES. [§ 127.

afford aid and assistance at the time when the offence is com-
mitted, are not principals, but accessaries before the tact. I
Presence, however, during the whole of the transaction is not
necessary: for instance, if several combine to forge an instru-
ment, and each execute 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, m

(^.) JRiots and JRiotous JSbmicides.

§ 127. All those who assemble themselves together, with an
intent even to commit a trespass, the execution whereof causes a
felony to be committed; and continue together abetting one an-
other, till they have actuaUy put their design into execution ; and
also all those who are present when felony is committed, and abet
the doing of it, are principals in felony, n So if several persons
come to a house with intent to commit an affray, and one be
killed, while the rest are engaged in riotous or illegal proceedings,
though they are dispersed in different rooms, all will be princi-
pals in the murder, o And where persons combine to stand by
one another in a breach of the peace, with a general resolution to
resist all opposers, and, in the execution of their design, a mur-
der is committed, all of the company are equally principals in the
murder, though at the time of the fact some of them were at such
a distance as to be out of yiew.p Thus where a number of persons
combined to seize with force and violence a vessel, and run away
with her, and, if necessary, to kill any person who should oppose
them in the design, and murder ensues, all concerned are prin-
cipals in such murder. 9 So, to use the language of an able
judge, where divers persons resolve severally to resist all officers
in the commission of a breach of the peace, and to execute it in
such a manner as naturally tends to raise tumults and affrays,
and, in doing so, happen to kill a man, they are all guilty of mur-
der; for they who unlawfully engage in such bold disturbances

/ R V. Soares, R & R. 25; R v. Brennan r. People, 15 Illinois, 511 ;

Daris, Ibid. 113; R v. Elsce, Ibid. Carrington v. People, 6 Parker C. P.

142 ; R V. Badcock, Ibid. 249 ; R v. 886. Post, vol. iL " Riot."

Manners, 7 C. & P. 801. o Dalt. J., c. 161; 1 Hale, 489;

m R. V. Bingley, R. & R 446. See Hawk. b. 2, c. 29, s. 8.

2 East P. C. 768. p B,, v, Howell, 9 C. & P. 487.

n Post. 851, 352; 2 Hawk. c. 29, b. q U. S. v. Ross, 1 Gallison, 624.

9;R. V. Howell, 9 C. & P. 487; See Brennan v. People, 15 Illinois, 511.

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§ 128.] PRINCIPAL AND ACCESSARY : [BOOK I.

of the public peace, in opposLtion to, and in defiance of, the
justice of the nation, must, at their peril, abide the event of their
actions. Malice, in such a killing, is implied by the law, in all
who are engaged in the unlawful enterprise; whether the de-
ceased fell by the hand of the accused in particular, or otherwi8e<.
is immaterial. All are responsible for the acts of each, if done
in pursuance and furtherance of the common design. This doc-
trine may seem hard and severe, but has been found necessary to
prevent riotous combinations committing murder with impunity.
For where such illegal associates are numerous, it would scarcely
be practicable to establish the identity of the individual actually
guilty of the homicide. Where, however, a homicide is com-
mitted by one or more of a body unlawfully associated, from
causes having no connection with the common object, the re-
sponsibility for such homicide attaches exclusively to its actual
perpetrators, r

§ 128. If, as it was laid down in another case, during a scene
of unlawful violence, an innocent third person is slain, who had
no connection with the combatants on either side, nor any par-
ticipation in any of their unlawful doings, such a homicide would
be murder, at common law, in all the parties engaged in the
affray. "It would be a homicide, the consequence of an unlaw-
ful act, and all participants in such an act are alike responsible
for its consequences. If the law should be called upon to detect
the particular agents by whom such a slaying has been perpe-
trated, in a general combat of this kind, it would perpetually
defeat justice and give immunity to guilt. Suppose, for instance,
a fight with fire-arms between two bodies of enraged men should
take place in a public street, and, from a simultaneous fire, inno-
cent persons, their wives or children, in their houses, should be
kiUed by some of the missiles discharged : shall the violators of
the public peace, whose unlawful acts have produced the death of
the unoffending, escape, because from the maimer and time of the
fire it is impossible to tell from what quarter the implement of
death was propelled? Certainly not. The law declares to such
outlaws, you are equally involved in all the consequences of your
assault on the public peace and safety. Is there any hardship in
this principle ? Does not a just regard to the general safety de-

r Com. V. Daley, 4 Penn. Law Jour- 653 ; Moody p. State, 6 Coldw. (Tenn.)
nal, 156 ; Com. v. Neills, 2 Brewster, 299.
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BOOK I.] DISTINCTION BETWEEN DEGREES. [§ 130.

mand its strict application? If men are so reckless of the lives
of the innocent as to engage in a conflict with fire-arms in the
public highway of a thickly populated city, are they to have the
benefits of impracticable niceties, in order to their indemnity
from the consequences of their own conduct?" 8

(A.) When Distinction between the two Degrees is important

§ 129. The distinction between principals in the first and sec-
ond d^ree, it has been said, is a distinction without a difference ;
and, therefore, it need not be made in indictments, t Such is
only the case, however, where the punishment is the same for
the two divisions, u But where, by particular statute, the pun-
ishment is different, then principals in the second degree must be
indicted specially, as aiders and abettors, v In an indictment for
murder, if several be charged as principals, one as principal per-
petrator, and the others as aiding and abetting, it is not material
which of them be charged as principals in the first degree, as
having given the mortal blow ; for the mortal injury given by
any one of those present is, in contemplation of law, the in-
jury of each and every of them.t<^ There are cases, however,
where the provisions of a statute require the distinction to be ob-
served; thus an indictment which charges that the prisoner
caused and procured a certain instrument to be forged, and will-
ingly assisted in the forgery, &c., is to be understood as charging
that he caused it to be done in his presence, and that he aided,
being present ; in other words, to be considered as charging him
as principal in the second degree, and not as accessary, re

(t.) Conviction of Principal in the First Degree not necessary,

§ 130. If the actual perpetrator of a murder should escape



Online LibraryFrancis WhartonA treatise on the criminal law of the United States → online text (page 18 of 88)