ACCESSARY. In Criminal Law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.
An accessary before the fact is one who, being absent at the time of the crime com mitted, yet procures, counsels, or commands another to commit it. 1 Hale, Pl. Cr. 615. With regard to those cases where the prin. cipal goes beyond the terms of the solicit ation, the approved test is, " Was the event alleged to be the crime to which the accused is charged to be accessary a probable cause of the act which he counselled?" 1 Fost. & F. Cr. Cas. 242; Roscoe, Crim. Ev. 4th Lond. ed. 207. When the act is committed through the agency of a person who has no legal cretion nor a will, as in the case of a Ind or an insane person, the incit,or, though absent when the crime was committed, will be con sidered, not an accessary, for none can be accessary to the acts of a madman, but a prin. cipal in the first degree. 1 Hale Pl. Cr. 618. But if the instrument is aware of the con sequences of his act, he is a principal in the first degree, and the employer, if he is absent when the fact is committed, is an accessary before the fact, 1 Russ. & R. Cr. Cas. 363; 1 Den. Cr. Cas. 37 ; 1 Carr. & K. 589; or if he is present, as a principal in the second degree, 1 Fost. Cr. Cas. 349; unless the instrument concur in the act merely for the purpose of detecting and punishing the employer, in which case he is considered as an innocent agent. 2 Mood. Cr. Cas. 301; 1 Carr. & K. 395.
An accessary after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon 4 Blackstone, Comm. 37.
No one who is a principal can be an acces sary.
2. In certain crimes, there can be no ac cessaries ; all who are concerned are princi pals, whether they were present or absent at the time of their commission. These are trea son, and all offences below the degree of fel ony. 4 Sharswood, Blackst. Comm. 35-40• Hawkins, Pl. Cr. b. 2, c. 29, 16; 2 Den. Cr. Cas. 453 ; 5 Cox, Cr. Cas. 521; 2 Mood. Cr. Cas. 276 ; 8 Dan. Ky. 28; 20 Miss. 58 ; 3 Cush. Mass. 284; 3 Gray, Mass. 448. Such is the English law ; but in the United States it ap pears not to be determined as regards the cases of persons assisting traitors. Sergeant, Const. Law, 382; 4 Cranch, 472, 501; United States v. Fries, Pamphl. 199.
3. It is evident there can be no accessary when there is no principal ; if a principal in a transaction be not liable under our laws, no one can be charged as a mere accessary to him. 1 Woodb. & M. C. C. 221.
By the rules of the common law, necessaries cannot be tried, without their consent, before the principals. Post. Cr. Cas. 360.
But an accessary to a felony committed by several, some of whom have been convicted, may be tried as accessary to a felony commit ted by these last; but if he be indicted and tried as accessary to a felony committed by them all, and some of them have not been proceeded against, it is error. 7 Serg. & R. Penn. 491; 10 Pick. Mass. 484. If the prin cipal is dead, the accessary cannot. by the common law, be tried at all. 16 Mass. 423.