§ 466. IF the reader will turn back to the Diagram of Crime, at § 441, he will find the subject of our present chapter indicated by two divisions; namely, B C O P, and E F L M. We shall see, before we get through, that these divisions are in many respects as wide asunder in the facts of the law, as in position on the diagram; while in other respects they are alike. This similitude in some respects requires them to be treated together in part, and therefore both are included in one chapter.

§ 467. The term accessory is generally understood as applicable only in felonies; but its use will more exactly appear as we proceed in this chapter. It signifies a person who participates in the felony, without coming so near as to be deemed a principal.1 If the participant is a principal, though only of the second degree, he cannot be held under an indictment charging him as accessory; if he is an accessory, he cannot

2

1 See ante, § 460.

* Rex v. Gordon, 1 Leach, 4th ed. 515, 1 East P. C. 352; Reg. v. Perkins,

be held as principal. Yet, by separate acts, a man may make himself both principal and accessory in the same felony: as, by commanding another to kill a third person, whereby he becomes an accessory when the murder is done; and afterward joining with the person commanded in doing it, which makes him also a principal.2 And so by distinct acts he may be both an accessory before, and an accessory after, the fact. How near the principal crime he must come to be even an accessory we shall see in subsequent sections. Of course it makes no difference generally, in respect to the doctrines we are about to consider, whether the felony exists at common law or is the creature of statute.4

§ 467 a. The division of the thing done into accessorial and principal seems to have little foundation of reason. But there is a practical advantage sometimes following, in respect merely of the punishment; while, on the other hand, there are technical rules grown up from this distinction greatly embarrassing to the administration of justice. We shall discuss, I. The General Doctrine concerning Accessories; II. Accessories before the Fact; III. Accessories after the Fact.

I. The General Doctrine.

§ 468. The leading doctrine in respect to an accessory is, that he follows, like a shadow, his principal.

He can neither

12 Eng. L. & Eq. 587. That in some respects this was formerly thought otherwise by some writers, see Foster, 361, 362.

1 Course's case, cited Foster, 349; Hughes v. The State, 12 Ala. 458; Hately. The State, 15 Ga. 346. And see Rex v. Plant, 7 Car. & P.

575.

22 Hawk. P. C. Curw. Ed. p. 436, § 1; 3 Inst. 139.

* Rex v. Blackson, 8 Car. & P. 43; The State v. Coppenburg, 2 Strob. 273. And see Rex v. Dannelly, 2 Marshall, 571; Norton v. People, 8 Cow. 137; Stoops v. Commonwealth, 7 S. & R. 491, Bibethe's case, 4 Co. 43 b. * Ante, § 85, 87; Rex v. Bear, 2 Salk. 417, 418.

Broom Leg. Max. 2d ed. 374; 4 Bl. Com. 36; 3 Inst. 139.

be guilty of a higher offence than his principal; nor guilty at all, as accessory,1 unless his principal is guilty. Thus "if a wife or servant," say the old English books, "cause a stranger to murder the husband or master, and are absent when the murder is committed, they cannot be said to be accessories to petit treason,2 but to murder only; because the offence of the principal is but murder. But if such wife or servant had been present when the murder was committed, they would have been guilty of petit treason, and the stranger of murder; because in respect of such presence they would have been principals in killing." So, according to the general doctrine, not only a man cannot be guilty as an accessory unless there is a principal who is guilty; but also he cannot be convicted except jointly with or after the principal, whose acquittal acquits him. He may, according to what Hawkins esteems the better opinion, be indicted and arraigned before; but the trial cannot proceed without his consent, though! with his consent it can.6 After the conviction of the accessory, judgment will not be arrested on the ground that the indictment does not mention the attainder of the principal. If there are several principals, the accessory may be tried in respect of such as are already attainted, before the attainder of the rest. But if, without his consent, he is tried

See ante, § 458.

In this country, we have no petit treason, as see ante, § 357.

3 Ante, § 460.

2 Hawk. P. C. Curw. Ed. p. 442, § 15.

The State v. Pybass, 4 Humph. 442; United States v. Crane, 4 McLean, 317; Whitehead v. The State, 4 Humph. 278; Commonwealth v. Woodward, Thacher Crim. Cas. 63; 2 Hawk. P. C. Curw. Ed. p. 483, § 47.

2 Hawk. P. C. Curw. Ed. p. 451, § 45; 2 Hale P. C. 224. See, for the contrary doctrine as to the arraignment, Gittin's case, Plow. 98, 99; Commonwealth v. Andrews, 3 Mass. 126; Commonwealth v. Woodward, Thacher Crim. Cas. 63.

7

Harty v. The State, 3 Blackf. 386. But see, on this point, Stokes v. Commonwealth, 7 S. & R. 491.

Stoops v. Commonwealth, 7 S. & R. 491; Commonwealth v. Knapp, 10 Pick. 477. And see The State v. Pybass, 4 Humph. 442; Whitebeard v.

as to all of them, and convicted generally, the conviction will not be good.1 Some of these doctrines, as concerns merely the procedure, are perhaps doubtful on authority, though believed to be as above stated. Indeed the earlier and later cases are not altogether harmonious.

§ 469. The accessory is so completely, at common law, attached to his principal, that if, for any cause however far from the merits of the case, there is an omission to pass actual sentence on the principal's conviction, called in the English law attainder, no judgment can be pronounced against the accessory. Thus, said Lord Hardwicke, "before the statute of 1 Anne, stat. 2, c. 9, if the principal was convicted only of a clergyable felony, and had his clergy allowed;2 or stood mute, or peremptorily challenged above the number of twenty jurors; the accessory could not be arraigned. By this means accessories to very flagrant crimes frequently avoided all manner of punishment." This statute is of a date too recent to be generally received as common law in this country. It provides, among other things, "that from and after the twelfth day of February, which shall be in the year of our Lord one thousand seven hundred and two, if any principal offender shall be convicted of any felony, or shall stand mute, or peremptorily challenge above the number of twenty persons returned to serve of the jury, it shall and may be lawful to proceed against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding any such principal felon shall be admitted to the benefit of his

The State, 4 Humph. 278; Commonwealth v. Woodward, Thacher Crim. Cas. 63.

1 Stoops v. Commonwealth, 7 S. & R. 491.

2 Stevens' case, Cro. Car. 566, 567.

3 Rex v. Burridge, 3 P. Wms. 439, 485. And see 2 Hawk. P. C. Curw. Ed. p. 450, § 41.

4 Ante, § 11, 13, 15. See post, § 494 and note.

[BOOK IV. clergy, pardoned, or otherwise delivered before attainder." And since this provision was enacted, as well as before, if, for a cause not mentioned in it, as the escape or death of the principal, he is not attainted, the accessory cannot be proceeded against.1 Yet an erroneous attainder of the principal, while it remains unreversed, justifies proceedings against the accessory; though a reversal of it discharges him.3 A pardon of the principal, after he is not only convicted but attainted, will in no way avail the accessory. This common law impediment is in some States removed by statute.5

§ 470. It should however be observed, that, in those cases where the principal and accessory are tried at different times, the accessory on his trial is permitted to deny the principal's guilt, notwithstanding the judgment of attainder against the principal. For the opposite doctrine would hold one bound conclusively by a proceeding to which he was no party, contrary to a primary element of law and of natural jus

tice.

§ 471. But it is contrary to reason that a prosecutor, in pursuing one man, should be bound by a failure in his pursuit of another man; and so the legislation of some of the States has directed, as already observed, that proceedings may be carried on against the accessory, irrespective of the case against the principal offender. The direction is not always

1 Commonwealth v. Phillips, 16 Mass. 423.

2 Rex v. Baldwin, 3 Camp. 265, Russ. & Ry. 241, 2 Leach, 4th ed. 928, note; The State v. Duncan, 6 Ired. 236.

* Marsh's case, 1 Leon. 325.

Syer's case, 4 Co. 43b; Bibithe's case, 4 Co. 43 b, Cro. Eliz. 540.

'As to Virginia, see Commonwealth v. Williamson, 2 Va. Cas. 211. And see post, § 471.

• Rex v. Smith, 1 Leach, 4th ed. 288; Commonwealth v. Knapp, 10 Pick. 477; Rex v. Turner, 1 Moody, 347; Keithler v. The State, 10 Sm. & M. 192; The State v. Duncan, 6 Ired. 98.