A few of the later cases are Wake man v. Chambers, 69 Iowa, 169, 58 Am. R. 218; S. v. Teahan, 50 Conn. 92; Har. ney v. S. 8 Lea 113; Page v. S. 11 Lea, 202; S. v. Baden, 37 Minn. 212. Some Minuter Explanations. - In C. v. Willard, 22 Pick. 476, the purchaser of the liquor sold without license was held not excusable from testifying against the sel ler, on the ground that he would criminate himself. In the opinion, Shaw, C. J. after saying that "no precedent and no authority has been shown for such a prosecution, and no such prosecution has been attempted within the knowledge of the court, although a similar law has been in force almost from the foundation of the government, and thousands of prosecu. tious and convictions of sellers have been had under it, most of which have been sustained by the testimony of buyers," proceeded: "It is difficult to draw any precise line of distinction between the cases in which the law holds it a misdemeanor to counsel, entice, or induce another to commit a crime, and where it does not. In general, it has been considered as applying to cases of felony, though it has been held that it does not depend upon the mere legal and techuical distinction between felony and misdemeanor. One consideration, however, is manifest in all the cases, and that is that the offence proposed to be committed by the counsel, advice, or enticement of another is of a high and aggravated character, tending to breaches of the peace or other great disorder and violence, being what are usually consid ered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent than as they are restrained by positive law." p. 478. And see, as confirming this doctrine, S. v. Hopkins, 4 Jones, N. C. 305; S. v. Wright, 4 Jones, N. C. 308. And see Rawles v. S. 15 Tex. 581. The question thus adjudged in Massachusetts was decided in the same way in New Hampshire. S. v. Rand, 51 N. H. 361, 12 Am. R. 127. Smith, J who

In

delivered the opinion, put the result in part upon a consideration of the general scope and purpose of the statute. And referring to the Massachusetts case: "We are not prepared to adopt the view there advanced, that one who approximates so nearly to the direct act as a purchaser does, is not liable as an aider or accessory because of the comparatively insignificant character of the main offence." p. 366. But while he thus disclaimed, he affirmed a doctrine not differing essentially from this, as follows: "The rules of statute interpreta tion, enunciated prior to the enactment of the prohibitory liquor law, and still recog. nized as sound, justify the court in giving weight to the above considerations. In cases of mala prohibita, the fact that the penalty is in terms imposed upon only one of two parties whose concurrence is requisite to the commission of the offence, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for giving the statute a construction exempting the party not named from criminal liability." p. 364. As sustaining this view he referred to Browning v. Morris, Cowp. 790; Williams v. Hedley, 8 East, 378; Tracy v. Talmage, 4 Kern. 162, 181-186, 67 Am. D. 132; Curtis v. Leavitt, 15 N. Y. 9; Buffalo City Bank v. Codd, 25 N. Y. 163; Richardson, C. J. in Roby r. West, 4 N. H. 285, 288, 289, 17 Am. D 423; Perley, C. J. in Prescott v. Norris, 32 N. H. 101, 105; White Franklin Bank, 22 Pick. 181; Sargent, J. in Butler v. Northumberland, 50 N. H. 33, 38, 39. Now, as we have seen (ante. § 333), the substance of the distinction between malum in se and malum prohibitum is that the former is more intensely evil than the latter; so that in essence this New Hampshire doctrine does not differ from what is held elsewhere. And see, as confirming in a general way the foregoing views, C. v. Wood, 11 Gray, 85, C. v. Boynton, 116 Mass. 343. On

the other hand, there is a Tennessee case, the reporter's headnote to which is, "The sale of liquor by a slave is a criminal of fence, and a white man who tempts him to commit the offence, by purchasing liquor from him, is an aider and abettor, and as much guilty, as a principal offender, of a misdemeanor as if the seller had been of his own color." And McKinney, J. said: In the case of a white man, we suppose it cannot be seriously controverted that upon general principles, the purchaser of spirituous liquors, in violation of the statutes passed to suppress tippling, is as much guilty of the violation of the law, and as much amenable to criminal prosecution and punishment, as the seller. They are, in all respects, particeps crimi nis; they are alike wilful violators of the law. The express prohibition to sell, upon every just principle of construction, must be considered as implying a prohibition to purchase. The purchaser whether we regard his intent, or the ef fect and consequences of his act - is no less guilty, no less within the mischief intended to be suppressed, than the seller. It matters not that the former is not placed under the obligation of a bond or oath. This takes nothing from the force of the argument. He still stands guilty of wilfully participating in, and aiding and encouraging the commission of, a criminal offence. Does not this, upon the soundest principles of criminal law, constitute him a principal in the offence? We think it does. And perhaps it would scarcely be going too far to say that he ought to be regarded as less excusable than the seller. He has not the poor pretext of the latter that the forbidden traffic is in part his means of procuring a living." S. v. Bonner, 2 Head, 135, 137. But see as to this question, the Tennessee

Again,

cases cited at the beginning of this note. For further views on this topic, see, as respects small things, ante, § 212 et seq. See also Brown v. Perkins, 1 Allen, 89; Stamper v. C. 7 Bush, 612. Malicious Shooting. In the case last cited it was held that one who abets at the fact of a malicious shooting is not pursuable under the Kentucky statute, which provides only for the punishment of the principal offender. The statutory words are that "if any person shall wilfully and maliciously shoot at and wound another, with an intention to kill him, so that he does not die thereby, . . . he shall be confined in the penitentiary not less than one nor more than five years." Said Hardin, J.: "As a general rule, where a statute creates a felony and prescribes a particular punishment therefor, or where a statute provides a punishment for a common-law felony by name, those who were present, aiding and abetting in the commission of the crime, are held to be included by the statute, although not mentioned as such in the statute. But where, as in this case, the punishment is imposed by the statute upon the person alone who actually committed the acts constituting the offence, and not in general terms upon those who were guilty of the offence, according to common-law rules mere aiders and abettors will not be deemed to be within the act." p. 614, referring to Rosc. Crim. Ev. 215. I do not propose to inquire how far these views would be generally accepted as sound.

1 S. v. Bugbee, 22 Vt. 32. And see C. v. Hadley, 11 Met. 66; Geuing v. S. 1 McCord, 573; Hays v. S. 13 Mo. 246; S. v. Bryant, 14 Mo. 340; Roberts v. O'Con ner, 33 Me. 496; Vaughn v. S. 4 Misso. 530.

2 Ante, § 219 (1); Stat. Crimes, § 1024,