to commit an assault and battery; or to bet for him on an ⚫ election ; 2 or to pass counterfeit money, where this offence is only misdemeanor; or to make an arrest, under circumstances wherein the arrest is by statute an indictable false imprisonment; or to sell, contrary to a statute, intoxicating liquor without license; or to throw dirt into the highway, being a common law nuisance; or to set fire to a building, where the burning is but a misdemeanor;7 or to obtain money for him by false pretences; or to keep a bawdyhouse; the employer may be indicted, as doing the thing, either before or after or with the person whom he employs.

§ 484. For a person to be guilty at all, his intent must have concurred sufficiently with his act.10 And on principles already mentioned,11 the accessorial act must draw closer to the principal one as we ascend into the lighter misdemeanors, a matter illustrated on our Diagram of Crime,12 where B PO approaches C O, coming to a point at O. Yet, in the smaller

1 The State v. Lymburn, 1 Brev. 397; Rex v. Jackson, 1 Lev. 124; Bell v. Miller, 5 Ohio, 250, a civil case; Greer v. Emerson, 1 Overt. 13, a civil

case.

Williams v. The State, 12 Sm. & M. 58.

32 East P. C. 973; United States v. Morrow, 4 Wash. C. C. 733; The State v. Cheek, 13 Ired. 114; Reg. v. Greenwood, 2 Den. C. C. 453, 9 Eng. L. & Eq. 535.

✦ Floyd v. The State, 7 Eng. 43; Reg. v. Tracy, 6 Mod. 178.

The State v. Dow, 21 Vt. 484; Commonwealth v. Nichols, 10 Met. 259; Schmidt v. The State, 14 Misso. 137; The State v. Anone, 2 Nott & McCord, 27; The State v. Borgman, 2 Nott & McCord, 34, note; Smith v. Adrian, 1 Mich. 495. And see The State v. Brown, 31 Maine, 520; The State v. Stewart, 31 Maine, 515.

Turberville v. Stampe, 1 Ld. Raym. 264.

Reg. v. Clayton, 1 Car. & K. 128.

8 Reg. v. Moland, 2 Moody, 276.

9 Ross v. Commonwealth, 2 B. Monr. 417.

10 Ante, § 264 et seq.; The State v. Pollock, 4 Ired. 303; The State v. Hunter, 5 Ired. 369.

Ante, § 320-324, 442-444, 464, 465.

12 Ante, § 441.

offences, as in the sale of intoxicating liquor without license,1 if the instigator, besides procuring the thing to be done, is . also the person to be benefited by the doing, he is, though absent, criminally responsible. The agent in these cases is likewise, we have seen, responsible: though, in the case of an information against the captain of a man-of-war for preventing the coroner from taking an inquest upon the body of a person hanged in his ship, where the captain had acted under a mistake of his legal duty; the court, granting the information, refused to proceed also against his boatswain, who had participated in the transaction under his order.5 Yet in respect of this case, we should remember, that the information was a proceeding in some sense discretionary with the court; and, therefore, that perhaps the judge would have deemed the boatswain liable, if the question had arisen on the trial of an indictment against him.

§ 485. Moreover, there may be crimes of such a peculiar nature, that, therefore, no person can commit them, or become guilty in respect of them, except by doing the forbid den thing personally.R

III. Accessories after the Fact.

§ 486. Let us examine the law relating to accessories after the fact, in the order just pursued; namely, First, As to felony, represented on our Diagram of Crime by delk;

1 See ante, § 483, and the authorities there cited.

And see ante, § 473.

3 Ante, § 275.

4 Ante, § 238.

Rex v. Soleguard, Andr. 231, 234, 235.

See ante, § 87, 282, 284; Rex v. Douglas, 7 Car. & P. 644; Commonwealth v. Dean, 1 Pick. 387; Mount v. The State, 7 Sm. & M. 277; O'Blennis v. The State, 12 Misso. 311; Vaughn v. The State, 4 Misso. 530. 7 Ante, § 441.

Secondly, As to treason, represented by E Fed; Thirdly, As to misdemeanor, shown by kl L M.

§ 487. First; as to Felony. We have seen, that, according to the general principles of the criminal law, the act and intent must concur in point of time; therefore, that one cannot make himself partaker of a crime by consenting to it after it has been committed by another. But now we are entering on the consideration of what may appear to be an exception to this rule; for, if a man receives, harbors, or otherwise assists to elude justice, one whom he knows is guilty of felony, he becomes thereby an accessory after the fact in the felony.2 Probably, however, the true principle is, that the harboring or assisting is the real crime; that the act of helping the criminal was deemed anciently to be deserving of the same condemnation as the act of him who was helped; that the judges who gave shape to our common law thought it not safe, in a capital case, to convict the person harboring until the person harbored was convicted; and that, therefore, this offence of assisting the criminal, philosophically separate and independent, was called accessorial, and the offender an accessory. And, to distinguish him from an accessory before the fact, who is punishable from an entirely different reason,1 he was termed an accessory after the fact. The law on this subject is not easily vindicated, if this course of argument is not correct.5

1 Ante, § 269, 314.

2 4 Bl. Com. 37; Rex v. Greenacre, 8 Car. & P. 35.

Ante, § 234, 364, 473.

* Ante, § 473.

5

According to the penal code of Austria,

"The immediate criminal is

not alone guilty of a crime, but also he, who, by command, counsel, instruction, or praise, prepares the offence, or intentionally has rendered assistance towards the execution of the same, or towards removing the obstacles to its commission; lastly, he who has stipulated with the offender beforehand to give him criminal assistance after the deed, or to participate with him in the gain arising therefrom. Whoever after the commission of the crime, and without preliminary stipulation, gives assistance to the criminal, or divides

§ 488. Obviously a man, to be an accessory after the fact, must be aware of the guilt of his principal. And therefore one cannot become such an accessory, by helping to escape a prisoner convicted of felony, unless he has notice of the conviction, or at least of the felony committed. So also, if a man has of malice aforethought inflicted a fatal blow on another man, a third cannot become an accessory after the fact in the murder, by reason of harboring such murderer before death ensues; because, until death, he cannot know that the offence was murder.3. If however we were to look at this point as one of principle, we should say, that rather the burden of proof lies heavily on the prosecuting power, to show a knowledge in the harborer's mind of the certain consequence of the blow being death; while, assuming such knowledge to be sufficiently established as a fact, no legal objection can prevent the conviction of the harborer as an accessory.

§ 489. If the reader turns to our Diagram of Crime, at § 441, he will there see, that, outside the region of Accessory after the Fact, and so removed further from the principal offence, are both Compounding and Misprision; the last two being severally of a like nature with the first one, but all differing in degree. When therefore the thing done amounts to no more than a compounding of the felony, or a misprision of it, matters to be considered further on, the doer will not be an accessory. Thus he will not be such, if he merely neglects to make known to the authorities that a felony has been committed; or forbears to arrest the felon;5 or agrees not to

the spoils with him, is not equally guilty, but by those acts becomes guilty of another and special crime." Sanford Penal Codes in Europe, 96.

1 Rex v. Burridge, 3 P. Wms. 439, 493; Rex v. Greenacre, 8 Car. & P. 35; 4 Bl. Com. 37; 1 Hale P. C. 323, 622; ante, § 241, 242.

2 Rex v. Burridge, supra.

32 Hawk. P. C. Curw. Ed. p. 448, § 35, where, however, a somewhat different reason is given, as to which see ante, § 339, note.

Ante, § 329, 337 and note, 338.

5 1 Hale P. C. 618, 619; 2 Hawk. P. C. Curw. Ed. p. 444, § 23, and p. 447, § 29.

prosecute him.1 A fortiori, a person does not become an accessory who merely receives back his own stolen goods,2 or who charitably supplies a prisoner with food; for neither of these acts is any offence whatever.

§ 490. The true test, for determining whether one is an accessory after the fact, is, to consider whether what he did was done by way of personal help to his principal, with the view of enabling the principal to elude punishment, but the kind of help rendered appears to be unimportant.1 Thus he is an accessory who, with the requisite knowledge and intent, furnishes the principal felon "with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a felon to enable him to break jail, or to bribe the jailor to let him escape, makes a man an accessory to the felony." But one is not thus chargeable, who, by persua sion or intimidation, keeps a witness from appearing against the felon on his trial; though such conduct is punishable as a misdemeanor."

5

§ 491. The books are not clear upon the question of when: a man becomes an accessory to another's felony, and when he commits a substantive crime,8 by aiding the other to escape. from prison or from the custody of an officer, or by resisting:

1 Post, c. 37.

2 1 Hale P. C. 619; 2 East P. C. 743.

1 Hale P. C. 620; 4 Bl. Com. 38.

See 2 Hawk. P. C. Curw. Ed. p. 445–457, § 26–31; Rex v. Lee, 6 Car. & P. 536; Reg. v. Chapple, 9 Car. & P. 355.

5 4 Bl. Com. 38.

• Roberts's case, 3 Inst. 139; Reg. v. Chapple, 9 Car. & P. 355.

Roberts's case, supra; ante, § 365.

8 Ante, § 364–366. A substantive felony is one which depends on itself alone; and not on another felony, to be first established by the conviction of the person who directly committed it. The State v. Ricker, 29 Maine,

84.