11. Principals in the second degree are those who are present aiding and abetting the com mission of the fact. 2 Va. Cas. 356. They are generally termed aiders and abettors, and sometimes, improperly, accomplices; for the latter term includes all the particeps criminis, whether principals in tbe first or second de gree or mere accessaries. A person to be a principal in the second degree need not he actually present an ear- or eye-witness of the t;-snaution. The presence may be construct ive. Hy) is, in construction of law, present aiding and abetting if, with the intention of giving assistance, he be near enough to afford it should the occasion arise. If, for instance, he be outside the house watching to prevent surprise, or thelike, whilst his companions are in the house committing a felony, such con structive presence is sufficient to make him a principal in the second degree. Foster, Crim. Law, 347, 350 ; 1 Russell, Crim. Law, 27 ; 1 Hale, 555 ; Wright, Ohio, 75 ; 9 Pick. Mass. 496 ; 9 Carr. & P. 437 ; 15 Ill. 511. There must, however, be a participation in the act ; for although a person be present when a felony is committed, yet if he does not consent to the felonious purpose or con tribute to its execution he will not be a principal in the second degree merely be cause he does not endeavor to prevent the felony or apprehend the felon. 1 Russell, Crimes, 27 ; 1 Hale, Pl. Cr. 439 ; Foster, Crim. Law, 350; 9 Ired. No. C. 440; 3 Wash. C. C. 223 ; 1 Wisc. 159 ; 1 Archbold, Crim. Law, 7th Am. ed. 61, 62.
12. The law recognizes no difference be tween the offence of principals in the first and principals in the second degree. And so immaterial is the distinction considered in practice that, if a man be indicted as princi pal in the first degree, proof that he was pre sent aiding and abetting another in commit ting the offence, altlaough his was not the hand which actually did it, will support the indictment ; and if he be indicted as princi pal in the second degree, proof that fie was not only present, but committed the offence with hie own hand, will support the indict ment. So, when an offence is punishable by
a statute which makes no mention of princi pals in the second degree, such principals are within the meaning of the statute as much as the parties who actually commit the offence. 1 Archbold, Crim. Law, Waterman's 7th Am. ed. 66, 67.
In treason, and in offences below felony, and in all felonies in which the punishment of principals in the first dedree and of prin cipals in the second degree is the same, the indictment may charge all who are present and abet the fact as principals in the first degree, provided the offence permits of a par ticipation, o,r specially as alders and abet tors. Archbold, Crim. Plead. 14th ed. 7 ; 11 Cush. Mass. 422 ; 1 Carr. & M. 187. But where by particular statutes the punishment is different, then principals in the second de gree must be indicted specially as alders and abettors. Archbold, Crim. Plead. 14th ed. 7. If indicted as aiders and abettors, an indictment charging that A gave the mortal blow, and that B, C, and D were present aid ing and abetting, will be sustained by evi dence that B gave the blow, and that A, C, and D were present aiding and abetting; and even if it appears that the act was committed oy a person not named in the indictment, the aiders and abettors may, nevertheless, be oonvicted. Dougl. 207 ; 1 East, Pl. Cr. 350.
And the same though the jury say that they are not satisfied which gave the blow, if they are satisfied that one of them did, and that the others were present aiding and abetting. 1 Den. Cr. Cas. 52 ; 2 Carr. & K. 382.