imprisonment in the state prison shall be felonies.1 If the court or jury is at liberty to inflict, in its discretion, some other punishment instead of imprisonment in the state prison, this discretion, it is held, does not prevent the offence from being felony. And in a New York case, the judge said: “This provision defines statute felonies, but does not interfere with those existing at common law, untouched by statute." In Vermont, it was by one of the judges intimated, that felony at common law is there unknown, all indictable offences being divided into crimes and misdemeanors.4 Yet if we look at other cases, and at the statutes and general jurisprudence of the State, we shall conclude, that the matter is there much as in the other States just mentioned, where all crimes punishable by death or imprisonment in the state prison are felonies. In North Carolina, the act of 1801 made forgery a felony, without benefit of clergy; the act of 1845 changed the punishment from death to whipping, imprisonment, and a fine; and the court held, that forgery was still, according to the act of 1801, a felony.

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III. Misdemeanor.

§ 453. All crime less than felony is termed misdemeanor."

1 Weinzorpflin v. The State, 7 Blackf. 186, 188; The State v. Smith, 8 Blackf. 489; People v. Brigham, 2 Mich. 550 and the cases in the next two

notes.

The State v. Smith, 32 Maine, 369; Johnston v. The State, 7 Misso. 183; Ingram v. The State, 7 Misso. 293; People v. Van Steenburgh, 1 Parker, 39.

Ward v. People, 3 Hill, N. Y. 395; yet see Carpenter v. Nixon, 5 Hill, N. Y. 260. In Missouri it is otherwise by express words of the statute. Nathan v. The State, 8 Misso. 631.

The State v. Scott, 24 Vt. 127; R. S. of 1839, c. 102.

The State v. Wheeler, 3 Vt. 344, 347.

The State v. Rowe, 8 Rich. 17.

71 Russ. Crimes, Grea. Ed. 45; Commonwealth v. Callaghan, 2 Va. Cas 460; Rex v. Powell, 2 B. & Ad. 75.

§ 454. THE present chapter relates to those criminal things which are indicated on our Diagram of Crime at § 441, by CEMNO. We shall examine the subject as concerns, 1. Felony, represented by b d kh; II. Treason, by CE db; III. Misdemeanor, by hk M N O.

I. As to Felony.

§ 455. A man guilty of felony is guilty either as principal of the first degree, or as principal of the second degree, as accessory before the fact, or as accessory after the fact.1 are now to consider principals of both the first and second degrees.

§ 455 a. The law has wisely ordered, that all persons whose wills contribute 2 to an act of wrong shall be deemed guilty in respect of the act, by whomsoever performed. But the position of the participants as to the guilt is determined, in some cases, by the nearness of their presence to the act; in other cases, by other things. The rules on this subject differ

1 And see Vaux's case, 4 Co. 44.

2 Ante, § 264 et seq.

in treason, felony, and misdemeanor. We are now to see what the rules are.

§ 456. In felony, a principal of the first degree is one who does the act, either himself directly, or by means of an innocent agent. A principal of the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does it. But the distinction between the two degrees is only formal, having no practical use or effect whatever. Its origin is, that in very ancient times those only who are now called principals of the first degree were principals at all; while persons present, aiding and abetting, were accessories at the fact. But when afterward the courts came to hold the latter to be principals, they called them principals of the second degree.1 And now an indictment against a man as principal of the first degree is sustained by proof of his being principal of the second degree; and, on the contrary, an indictment against him as principal of the second degree is supported by proof that he is principal of the first degree.2 The distinction is in all respects without a difference; and it should not be preserved in the books.

1 1 Russ. Crimes, Grea. Ed. 26; Griffith's case, Plow. 97, 98; Foster, 347, 348.

The State v. Mairs, Coxe, 453; The State v. Anthony, 1 McCord, 285; Rex v. Cunningham, 1 Crawf. & Dix C. C. 196; Rex v. Greene, 1 Crawf. & Dix C. C. 198; The State v. Cameron, 2 Chand. 172; Banson v. Offley, 3 Salk. 38; Reg. v. Wallis, 1 Salk. 334; Reg. v. Crisham, Car. & M. 187; Rex v. Towle, Russ. & Ry. 314, 3 Price, 145; Rex v. Gogerley, Russ. & Ry. 343; Foster, 351; Shaw v. The State, 18 Ala. 547; Archb. New Crim. Proced. 13. But see Reg. v. Tyler, 8 Car. & P. 616.

The State v. Fley, 2 Brev. 338; Reg. v. Rogers, 2 Moody, 85; Griffith's case, Plow. 97, 98, 100; Reg. v. Phelps, Car. & M. 180; Rex v. Taylor, 1 Leach, 4th ed. 360; Shaw's case, 1 East P. C. 351; Rex v. Folkes, 1 Moody, 354; Reg. v. Williams, Car. & M. 259; Rex v. Gray, 7 Car. & P. 164; Rex v. Potts, Russ. & Ry. 353; Rex v. Royce, 4 Bur. 2073; Rex v. Moore, 1 Leach, 4th ed. 314, 2 East P. C. 679; Dennis v. The State, 5 Pike, 230; Fugate v. The State, 2 Humph. 397; The State v. Arden, 1 Bay, 487; Hately v. The State, 15 Ga. 346; McCarty v. The State, 26 Missis. 299, 303; United States v. Wilson, Bald. 78.

Occasionally, however, we meet with a statute so drawn upon this distinction as necessarily to keep it alive for its particular purpose.1

§ 457. In a previous chapter2 was discussed the question, how far the will must contribute to an act performed by the physical volition of another, to make the contribution of the will indictable. Assuming it to contribute sufficiently, the question now arises, what other relation must the person sustain to the act to make him a principal, in distinction from an accessory. Plainly if one does the thing through the exertion of his will alone, no other will being added, he is a principal, whatever physical agencies he employs, and whether he is present or absent when the thing is done. So if he is present while any act necessary to constitute the offence is being performed through another, though not the whole thing necessary; and perhaps while any act is being done which may enter into the offence, though not strictly necessary; he is a principal. We have already seen, that he is such if present during the entire commission of the crime by another's physical volition. But if what is accomplished in his presence is not in any sense a part of the offence, he is not a principal. So where there are several acts constituting together one crime, if each act is separately performed by a different individual in the absence of the rest, the individuals are jointly principals as to the whole. Thus, where forgery is by statute

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1 And see Foster, 355 et sèq.; Brennan v. People, 15 Ill. 511.

2 Ante, § 264 et seq.

* Reg. v. Kelly, 2 Car. & K. 379; Reg. v. Simpson, Car. & M. 669; Rex v. Jordan, 7 Car. & P. 432; Rex v. Harding, Russ. & Ry. 125; Rex v. Palmer, Russ. & Ry. 72, 2 Leach, 4th ed. 978, 1 New Rep. 96; Rex v. Standley, Russ. & Ry. 305; Rex v. County, 2 Russ. Crimes, Grea. Ed. 118; Rex v. Butteris, 6 Car. & P. 147; Cornwall's case, 2 Stra. 881; Hawkins's case, cited 2 East P. C. 485; Rex v. Harris, 7 Car. & P. 416; ante, § 269.

Rex v. Dyer, 2 East P. C. 767; Rex v. Hornby, 1 Car. & K. 305.

Ante, § 456.

Rex v. King, Russ. & Ry. 332; Rex v. McMakin, Russ. & Ry. 333, note; Rex v. Badcock, Russ. & Ry. 249.

felony, if several persons make distinct parts of a forged instrument, each one is a principal in the forgery; though he does not know by whom the other parts are executed, and though it is finished by one alone, in the absence of the others. Were the law not so, there would in these circumstances be no way of punishing the guilty person, for he is not an accessory either before or after the fact.

§ 458. The doctrine of the last section shows, what was there in part stated, that, if a man employs any inanimate substance, or any person destitute of responsibility in the particular transaction, to commit for him a criminal thing, the necessity of there being some principal makes the employer such. To be a principal within this doctrine, he need not be present at the perpetration of the wrong. Thus a dose of poison,2 or an animate object like a human being, with 3 or without general accountability, may produce death or other injury in the absence of him whose will set the force in motion; and, in such a case, the absent person is a principal, whenever the immediate actor is not guilty in the particular transaction. If the immediate actor is guilty, the other, being absent, is only an accessory.

§ 459. And the Massachusetts court extended this doctrine to the point, that, where two prisoners are confined in adjoining cells, within hearing of each other, if one counsels to suicide the other, who, following the advice, commits it, the adviser is thereby made guilty, as principal, of murder."

1 Rex v. Kirkwood, 1 Moody, 304; Rex v. Dade, 1 Moody, 307; Rex v. Bingley, Russ. & Ry. 446.

2 Vaux's case, 4 Co. 44; Reg. v. Mitchel, 9 Car. & P. 356, 2 Moody, 120. 3 Rex v. Giles, 1 Moody, 166, Car. Crim. Law, 3d ed. 191; Commonwealth v. Hill, 11 Mass. 136; Adams v. People, 1 Comst. 173; Reg. v. Mazeau, 9 Car. & P. 676, and other cases cited ante, § 246.

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Anonymous, J. Kel. 53. And see Reg. v. Tyler, 8 Car. & P. 616; Reg. v. Michael, 9 Car. & P. 356, 2 Moody, 120.

Commonwealth v. Bowen, 13 Mass. 356. So it would seem, that by statute in Georgia a slave, though responsible, takes in some cases for the