SEE ACCESSION; ADJUNCTION; APPURTE NANCES.
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 aft er the fact committed.
An accessory 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.
Any one who incites persons or commands another to commit a felony is an accessory before fact and punishable as the principal felon. An accessory is never present at the commitment of the crime ; Odger, C. L. 132.
In some states an accessory before the fact is treated as a principal, as also in England by statute; 2 C. & K. 887; L. B.. 1 C. C. R. 77.
With regard to those cases where the principal goes beyond the terms of the so licitation; the approved test is, "Was the event alleged to he the crime to which the accused is charged to be accessory, a prob able effect of the act which he counselled?" 1 F. & F. Cr. Cas. 242; Rose. Cr. Ev. 181. When the act is committed through the agen cy of a person' who has no legal discretion or will, as in the case of a child or an insane person, the incitor, though absent when the crime was committed, will be considered, not an accessory, for none can be accessory to the acts of a madman, but a principal in the first degree ; 1 Hale, PL Cr. 514 ; U. S. v. Gooding, 12 Wheat. (U. S.) 469, 6 L. Ed. 693. 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 ab sent when the act is committed, is an acces sory before the fact ; 1 R. & R. Cr. Cas. 363; 1 Den. Cr. Cas. 37; 1 C. & K. 589; or if he is present, as a principal in the second de gree; 1 Fost. Cr. Cas. 349 ; unless the instru ment concur in the act merely for the pur• pose of detecting and punishing the employ er, in which case he is considered as an in nocent agent.
An accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon ; 4 Bla. Corn. 37.
In England one who harbors a felon, know ing him to be a felon (unless it is a wife harboring her husband). This does not ap
ply to a misdemeanant. In treason such per son is deemed a principal traitor ; Odger, C. L. 132.
No one who is a principal can be an ac cessory ; but if acquitted as principal he may be indicted as an accessory after the fact ; State v. Davis, 14 R. I. 283.
In certain crimes, there can be no accesso ries ; all who are concerned are principals, whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony; 4 Bla. Coro. 35 ; 2 Den. Cr. Cas. 453 ; Com. v. McAtee, 8 Dana (Ky.) 28 ; Williams v. State, 12 Smedes & M. (Miss.) 58 ; Com. v. Ray, 3 Gray (Mass.) 448; Schmidt v. State, 14 Mo. 137; Sanders v. State, 18 Ark. 198; Com. v. Burns, 4 J. J. Marsh. (Ky.) 182 ; Stev ens v. People, 67 Ill. 587 ; Griffith v. State, 90 Ala. 583, 8 South. 812 ; U. S. v. Boyd, 45 Fed. 851. Such is the English rule ; but in the United States it appears not to be deter mined as regards the cases of persons assist ing traitors ; Sergeant, Const. Law 382 ; In re Burr, 4 Cr. 472, 501; U. S. v. Fries, 3 Dall. 515, 1 L. Ed. 701. See Charge to Grand Jury, 2 Wall. Jr. 134, Fed. Cas. No. 18,276 ; U. S. v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299 ; Carlisle v. U. S., 16 Wall. (U. S.) 147, 21 L. Ed. 426 ; Hanauer v. Doane, 12 Wall. (U. S.) 347, 20 L. Ed. 439. That there cannot be an accessory in cases of treason, see Davis, Cr. L. 38. Contra, 1 Whart. Cr. L. § 224.
There can be no accessory 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 accessory to him; U. S. v. Libby, 1 Woodb. & M. 221, Fed. Cas. No. 15,597; Armstrong v. State, 28 Tex. App. 526, 13 S. W. 864. But see Searles v. State, 6 Ohio Cir. Ct. R. 331. This rule was chang ed by the Stat. 1 Anne, 2, c. 9, so that if the principal felon was delivered in any way after conviction and before attainder, as by pardon or being admitted to benefit of clergy, the accessory might be tried; and that rule is substantially enacted by the Ga. Penal Code § 49, but the common law is otherwise unchanged in this country ; Smith v. State, 46 Ga. 298.