5. Exceptionally, we now and then meet with an American statute in terms recognizing this distinction, therefore necessarily keeping it alive for the particular purpose.1 Leaving now what is thus ordinarily unimportant, § 649. Who a Principal. - Seeking the line which separates the principal of either degree from the accessory, we have the plain proposition that there can be no crime without a principal.2 There may be more principals than one; but there must be at least one. Consequently a man from whose sole and unaided will comes a criminal transaction is principal, whatever physical agencies he employs,3 and whether he is present or absent when the thing is done. Or if he is present abetting 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. But he is not such if what is accomplished in his presence is in no sense a part of the offence. Again, § 650. 1. Separate Acts to One End. Where several acts constitute together one crime, if each is separately performed by a different individual in the absence of the rest, all are principals as to the whole.8 For example, 2. In Forgery, where it is a statutory felony, if persons make distinct parts of a forged instrument, each is a principal as to the whole, even though he does not know by whom the other parts are executed, and one finishes it alone while the rest are absent,10 Were the law not so, no one could be punished; for a person man, 18 S. C. 175, 44 Am R. 569; Terri tory v. Yarberry, 2 New Mex. 391. 1 And see Foster, 355 et seq.; Brennan v. P. 15 Ill. 511; Reg v. Whistler, 11 Mod. 25, 2 Ld. Raym. 842; Warden v. S. 24 Ohio St. 143; Jones v. S. 64 Ga. 697; Williams. S. 69 Ga. 11; Washington v. S. 68 Ga. 570, Frey v. C. 83 Ky 190. 2 Post, § 651, 666. 8 See post, § 651. 4 Pinkard v. S. 30 Ga. 757. 6 Reg. . 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, 978, 1 New Rep. 96, Rex v Standley, Russ. & Ry. 305; Rex v County, 2 Russ. Crimes, 3d Eng. ed. 118, Rex v. Butteris, 6 Car. & P. 147, Corn. wal's Case, 2 Stra. 881; Hawkins's Case, cited 2 East P. C. 485, Rex v. Harris, 7 Car. & P 416, ante, § 642 (1). 6 Rex v. Dyer, 2 East P. C. 767; Rex v. Hornby, 1 Car. & K. 305. 7 Rex v. King, Russ. & Ry. 332; Rex v McMakin, Russ. & Ry. 333, note; Rex v. Badcock, Russ. & Ry. 249. 8 See, as illustrative, Rex v. Cope, 1 Stra. 144. And see post, § 653. 9 At common law, forgery is a misdemeanor. Vol II. § 609 10 Rex v. Kirkwood, 1 Moody, 304; Rex v. Dade, 1 Moody, 307; Rex v. Bing. ley, Russ. & Ry. 446 whose own hand does the criminal act, either wholly or in part, is not an accessory. Again, § 651. Act through Innocent Agent. Since there must always be a principal, one is such who does the criminal thing through an innocent agent 3 while personally absent. For example, when a dose of poison, or an animate object like a human being, with 5 or without general accountability, but not criminal in the particular instance, inflicts death or other injury in the absence of him whose will set the force in motion, there being no one but the latter whom the law can punish, it of necessity fixes upon him as the doer. But if the agent employed incurs guilt, then the employer is simply an accessory before the fact.S § 652. Counselling to Suicide. One who counsels to suicide another who does it in his presence is, in every view, guilty as principal. Accordingly where two persons, agreeing to commit suicide together, employ means which take effect on one only, the survivor is a principal in the murder of the other.10 But is the position of one who takes his own life that of an innocent agent, 1 Distinct Participants in Larceny. An English jury case holds that if one of two confederates unlocks the door of a room in which a larceny is to be com mitted, then goes away, and the other comes and steals the goods, the former is not a principal in the theft. Reg. v. Jeffries, 3 Cox C. C. 85. I doubt the soundness of this ruling. If sustainable, it must be on the ground that the unlock ing of the door constituted no part of the crime; but it seems to me that it was a part of the criminal transaction, distinctly contributing to the end. In Ohio, one of several confederates enticed the owner of a store a mile away and detained him, while the others broke open the store and took the goods; and the court held, it seems to me correctly, that he was a principal. The decision was put upon the ground that he was constructively present. He not merely advised, but bore a part in the crime; that constitutes a principal, whether we call it being constructively present or not. Breese v. S. 12 Ohio St. 146, 80 Am. D. 340. In these two cases, which seem to rest on a common reason, but were decided differently by different courts, we may probably deem that as the unlocking of the door in the one, and the enticing 3 Ante, § 310. 4 Vaux's Case, 4 Co. 44, Reg v Michael, 9 Car & P 356, 2 Moody, 120. Rex v. Giles, 1 Moody, 166, Car. Anonymous, J. Kel 53. And see 8 Wixson v. P. 5 Par. Cr. 119; Reg. c. Manley, 1 Cox C. C 104. 9 Vol. II. § 1187; Rex v. Dyson, Russ. & Ry. 523; Reg. v. Alison, 8 Car. & P. 418. 10 Reg. v. Alison, 8 Car. & P. 418. And see 1 East P. C. 229; S. v. Ludwig, 70 Mo. 412. or is he the guilty doer? In England he is regarded as the latter; so that the adviser, if absent at the commission of the act, is only an accessory before the fact, who cannot be convicted except after or with his principal, — which is never. It is not quite certain whether this is likewise the American doctrine, or whether with us the person committing suicide is to be deemed an innocent agent in inflicting the violence on himself,2 as respects the consequence to the adviser. In Massachusetts, two prisoners being within hearing of each other in adjoining cells, one counselled the other to take his own life, which he did; and it was ruled that if the advice caused the deed, the adviser was guilty of murder.3 To some extent, at present, this question is regulated by statutes. § 653. In Presence. Some of the foregoing doctrines, the reader perceives, grow out of the necessity of there being a principal, compelling the law to recognize as such one who would be only accessory if there had been present another subject to punishment. Where there is such other, no one will be a principal as abetting him unless in a position to render, if necessary, some personal assistance. Assuming one's will to contribute to the act, the test to determine whether he is a principal rather than an accessory 5 is, whether he is so near or otherwise so situated as to make his personal help, if required, to any degree available.R He need not be in the actual presence of the other principal; but if he is constructively there as thus explained, it is enough. And for reasons already seen, this is specially so when he does something which enters into the offence, constituting of it a part. Thus, 1 Rex v. Russell, 1 Moody, 356; Reg. v. Leddington, 9 Car. & P. 79. See Reg. v. Fretwell, Leigh & C. 161, 9 Cox C. C. 152. 2 And see Vol. II § 1187. 8 C. v. Bowen, 13 Mass. 356, 7 Am. D 154. See, as perhaps illustrative, Berry v. S. 10 Ga. 511, 518 4 Ante, § 628 et seq. 5 Post, § 663. 6 C. v. Knapp, 9 Pick. 496, 516-519, 20 Am. D. 491; Rex v. Manners, 7 Car. & P. 801; Rex v. Stewart, Russ. & Ry. 363, Green v. S. 13 Mo. 382, Rex v. Soares, Russ. & Ry. 25, 2 East P. C. 974; Rex v. Kelly, Russ. & Ry. 421; Reg. v. Jones, 9 Car. & P. 761; Tate v. S. 6 Blackf. 110; Rex v. Davis, Russ. & Ry. 113; S. v. Wisdom, 8 Port. 511; Norton v. P. 8 Cow. 137, Reg. v. Perkins, 12 Eng. L. & Eq. 587, Breese v. S. 12 Ohio St. 146, 154, 80 Am. D 340, Wixson v. P. 5 Par. Cr. 119, Trim C. 18 Grat 983, 98 Am. D. 765, S. Nash, 7 Iowa, 347; Doan v S. 26 Ind. 495, Selvidge . S. 30 Tex. 60; McCarney . P. 83 N. Y. 408, 38 Am. R. 456; Mitchell v. C. 33 Grat. 845; Truitt v. S. 8 Tex. Ap. 148. 7 Tate v. S. 6 Blackf. 110, S. v. Heyward, 2 Nott & McC. 312, 10 Am. D. 604; Coyles . Hurtin, 10 Johns. 85; C. v. Lucas, 2 Allen, 170; Reg. v. Vanderstein, 16 Ir. Com. Law, 574, 10 Cox C. C. 177; S. v. Hamilton, 13 Nev. 386. 8 Ante, § 649. 9 Rex v. Passey, 7 Car. & P. 282, Rex § 654. 1. In Larceny, a person waiting outside of a house to receive goods which his confederate is stealing within is a principal of the second degree.1 So may one be who is in a lower room while his confederate is operating in an upper room.2 And2. In Duelling. If death occurs in a duel, the seconds are principals in the murder.3 But — 3. In Uttering. It was held not sufficient to convict one as principal in the uttering of a forged note (assumed to be felony), that he came with the utterer to town, put up at the same inn with him, walked out with him, two hours later the other alone passed the note, in twenty minutes more the two came together, and when he saw that the utterer was arrested he ran from the officer, and each affected ignorance of the other. II. As to Treason. § 655. The Next Chapter will explain that in treason, not only are they principals who would be such if the offence were felony, but they also who would be accessories before the fact. So there is nothing for consideration under this sub-title. III. As to Misdemeanor. § 656. 1. Distinctions Unknown. Likewise, in misdemeanor, the distinction between principals of the first and second degree is unknown. Neither is there any between accessories before the fact and principals; all participants being principals, the same as in treason, a question for the next chapter. 2. Acting together - Possession. - If persons are together committing a misdemeanor, each one's act is that of all, the same as in felony; for the same reasons control this case as the other." And the possession of a thing by one, contrary to the prohibition of a statute, is the possession of all.8 But v Lockett, 7 Car. & P. 300; Rex v. Frank lyn, 1 Leach, 255, Cald. 244. And see Rex v. Borthwick, 1 Doug. 207; Rex v. Harris, 7 Car, & P. 416. Rex v. Owen, 1 Moody, 96. And see Rex v. Skerritt, 2 Car. & P. 427. 2 C. v. Lucas, 2 Allen, 170. 8 Rex v. Cuddy, 1 Car. & K. 210; Reg. v. Young, 8 Car. & P. 644; Reg. v. Bar. ronet, Dears. 51; Vol. II § 311. 4 Rex v. Davis, Russ. & Ry. 113. And see for similar facts, Rex v Else, Russ. & Ry. 142. In both of these cases the judges ? And see Edelmuth v. McGarren, 4 Daly, 467; S. v. Potter, 30 Iowa, 587. 8 Reg. v. Thompson, 11 Cox C. C. 362, 364; Reg. v. Goodfellow, 1 Den. C. C. 81, 1 Car. & K. 724. - § 657. 1. Lighter Misdemeanors distinguished. Blending in one view numerous distinctions which have appeared in the foregoing pages of this volume, the foundation whereof is the doctrine that a thing for the law to notice must be of its standard magnitude, we perceive that a dereliction from duty, though of the indictable sort, may be too minute for judicial cognizance. So that though the immediate doer of one of the smallest of misdemeanors may be punishable, the partaker of it in a less degree will escape. Within which principle, there are misdemeanors of such a nature, and so small in turpitude, that even a person present and lending the support of his will to the commission of the act is nevertheless not punishable. Besides which, — -- 2. Statutory Misdemeanors. The smaller misdemeanors are chiefly creations of statutes. The statutory expressions differ, but some of them are interpreted as providing their penalties only for the actual doers of the forbidden thing.2 Or if the terms of a statute distinctly limit the punishment to persons who participate in the act only in a certain way, they furnish the rule for the court. Or if the expression is general, then if the offence is of minor turpitude, and especially if the thing is only malum prohibitum, the courts by construction will limit its operation to those persons who are more particularly within the express words of the enactment.3 But this limiting interpretation is not applied to every statute creating a misdemeanor. Now, 3. Blendings. Most of the minor misdemeanors are, as just said, statutory. And when the question of the liability of a collateral participant in a misdemeanor of this sort arises for adjudication, the common-law question stated in the first of these paragraphs, and the statutory one stated in the second, so blend as to leave the proper decision often doubtful. Moreover the cases differ in their natures and in their special facts. So that to find a single and certain rule for these complicated cases becomes practically impossible; and the difficulty is further enhanced, if there is any enhancement of the impossible, by discordant utterances from the bench. Somewhat to particularize, § 658. 1. Retailing Liquor. 1 See ante, § 212 et seq. Under the statutes making it 4 U. S. v. Snyder, 3 McCrary, 377, 14 2 Frey v. C. 83 Ky. 190 (a case of fel Fed. Rep. 554; Foster v. S. 45 Ark. 361, ony): Page v. S. 11 Lea, 202. Campbell v. S. 79 Ala. 271; Harlow . C. 3 Wakeman v. Chambers, 69 Iowa, 11 Bush, 610, U. S. v. Bayer, 4 Dil. 407, 169, 58 Am. R. 218. 13 Bankr. Reg. 400, 402. 401 VOL. 1. -26 |