a ship, public or private, on the high seas, is, for the purpose of jurisdiction over crimes committed therein, a part of the territory to which the ship belongs, a person voluntarily coming on board an English ship, is as much amenable to the criminal law of England as if he came voluntarily into an English county, and ignorance of the law is no more an excuse in the one case than in the *48] other. (a) But in some instances an ignorance or mistake of the fact will excuse; which appears to have been ruled in cases of misfortune and casualty; as if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this will not be a criminal action. (b) See the Year Book, 13 Ed. 4, p. 9, pl. 5, as to statutes binding aliens. *49] *CHAPTER THE THIRD. OF PRINCIPALS AND ACCESSORIES. WHERE two or more are to be brought to justice for one and the same felony, they are considered in the light either-I. Of principals in the first degree. II. Principals in the second degree. III. Accessories before the fact; or, IV. Accessories after the fact. And in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime. (a) I. Principals in the first degree are those who have actually and with their own hands committed the fact; and it does not appear necessary to say anything in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the different offences in the course of the work. II. Principals in the second degree are those who were present, aiding and abetting at the commission of the fact. They are generally termed aiders and abettors, and sometimes accomplices: but the latter appellation will not serve as a term of definition, as it includes all the participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.(b) The distinction between principals in the first, and principals in the second degree; or, to speak more properly, the course and order of proceeding against offenders founded upon that distinction, appears to have been unknown to the most ancient writers on our law, who considered the persons present aiding and abetting in no other light than as accessories at the fact.(c) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule; and at length it became settled law that all those who are present, aiding and abetting, when a felony is committed are principals in the second degree. (d)1 (a) Reg. v. Sattler, Reg. v. Lopez, D. & B. C. C. 525. (b) Levett's case, Cro. Car. 538; 4 Blac Com. 27; 1 Hale 42, 43. (a) Fost. 417. (b) Fost. 341. Ry. (c) Fost. 347. (d) Coal-heaver's case, 1 Leach 66. And see Fost. 428, and Rex v. Towle, Russ. 314. This law was by no means settled till after the time of Ed. 3; and so late as the first Queen Mary a chief justice of England strongly doubted of it, though indeed it had been sufficiently settled before that time. 1 When presence aiding and abetting constitutes a party a principal, see Comm. v. Chapman, 11 Cush. 422; Connaughty v. State, 1 Wis. 159; State v. M'Gregor, 41 N. H. 407; State v. Wilson, 30 Conn. 500; State v. Ellis, 12 La. Ann. 390; State v. Simmons, 6 Jones (Law) 21; Thompson v. Comm. 1 Met. (Ky.) 13; Hill v. State, 28 Geo. 604; Burnett v. State, 18 Texas 713; State v. Nash, 7 Clarke 347; State v. M Clintock, 8 Ibid. 203; United States v. Douglass, 2 Blatchf. C. C. 207; Doan v. State, 26 Ind. 496; State v. Squaires, 2 [*50 In order to render a person a principal in the second degree, or an aider and abettor, he must be present aiding and abetting at the fact, or ready to afford assistance if necessary; but the presence *need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passes, but may be a constructive presence. So that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to insure the success of their common enterprise.(e) But there must be some participation; therefore if a special verdict against a man as a principal does not show that he did the act, or was present when it was done, or did some act at the time in aid which shows that he was present, aiding and assisting, or that he was of the same party, in the same pursuit, and under the same expectation of mutual defence and support with those who did the fact, the prisoner cannot be convicted. (f) So, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in that maiming.(g) And it is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up a little before he uttered it, joined him again in the street a short time after the uttering, and at a little distance from the place of uttering, and ran away when the utterer was apprehended.(h) This case has, however, been considered as having been decided upon the principle, that the circumstances which will amount to a constructive presence at common law will not be sufficient for the same purpose upon an indictment under a statute. (i) The general rule, however, applies to offences by statute as well as at common law, viz., that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a (e) Fost. 350; 2 Hawk. P. C. c. 29, s. 7, 8; see Reg. v. Howell, 9 C. & P. 437 (38 E. C. L. R.), Littledale, J. (ƒ) Rex v. Borthwick, Dougl. 207. (g) Rex v. White & Richardson, R. & R. 99. Post, Book III. p. 1008. (h) Rex v. Davis & Hall, East. T. 1806. MS. Bayley, J.; and R. & R. 113. (i) By Graham, B., in the case of Brady and others, O. B. June 1813, 1 Stark. Crim. Plead. 80, in the note. Nev. 226; State v. Fley, 2 Brevard 338. As a general rule where a statute creates a felony, all present aiding and abetting are guilty as principals: M'Gowan v. State, 9 Yerg. 184. 1 The abettor must be in a situation where he may actually give aid, not merely where the perpetrator erroneously supposes he may. Proof that a person conspired to commit a murder, is not in itself a legal presumption of his having aided; but it is to be weighed as evidence of it. But if it be proved that there was a conspiracy, and that one of the conspirators was in a situation in which he might have given aid at the time of the murder, it is a legal presumption that he was there to carry into effect the preconcerted crime, and it is for him to rebut the presumption by showing that he was there for a purpose unconnected with the conspiracy: The Commonwealth v. Knapp, 6 Pick. 496. One who is present and sees that a felony is about to be committed, and does in no manner interfere, does not thereby participate in the felony committed. It is necessary, in order to make him an aider or abettor, that he should do or say something, showing his consent to the felonious purpose and contributing to its execution: State v. Hildreth, 9 N C. 440; Grier v. State, 13 Mo. 382. Personal presence at the place where a crime is committed is not always necessary to constitute the offender a principal, e. g., where it is perpetrated by means of an instrument, as by the discharge of a gun taking effect in another county or by an innocent living agent: People v. Adams, 3 Denio 190. When an offence is committed in one state by means of an innocent agent, the employer is guilty as a principal, though he did not act in that state, and was at the time the offence was committed in another: Adams. People, 1 Coms. 173. common design, of which the offence is part.(k) And it has been considered, in a case where three persons were charged with uttering a forged note, that other acts done by all of them jointly, or by any of them separately, shortly before the offence, may be given in evidence to show the confederacy and common purpose, although such acts constitute distinct felonies.(1) And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence.(m) Kelly and McCarthy were indicted for stealing oats, and it appeared that Kelly *51] was hired by the prosecutor to draw oats in *sacks from a vessel to the prosecutor's warehouse, and McCarthy was employed by the prosecutor to load the sacks out of the vessel into the trams on which they were carried. The trams belonged to Kelly. Whilst one load was being conveyed to the warehouse, Kelly said to McCarthy, "It's all right," and shortly afterwards McCarthy emptied some oats out of two sacks which were on a tram close to the vessel, into a nosebag, which he then placed under the tram. Kelly, at this time, was absent with a load ; but returned in a few minutes to the vessels with an empty tram, took the nosebag from under the tram, where McCarthy had placed it, and put it on the tram, and drove off with it, McCarthy being, at the time Kelly took the nosebag from under the tram, on the vessel, which lay close to the tram, and within three or four yards of Kelly. It was submitted that Kelly was entitled to be acquitted, as he was not present at the time when the oats were stolen. Maule, J.: "I think the evidence shows that this was all one transaction, in which both concurred; and I think both having concurred, and both being present at some parts of the transaction, both may be convicted.”(n) Upon an indictment for larceny against Hornby and W. G., it appeared that W. G. was the foreman of the prosecutor, a canvas manufacturer, but had no authority to sell any yarn. On one occasion Hornby sent his servants to the warehouse of the prosecutor to bring away yarn, and W. G. delivered with the yarn an invoice made out in the name of the prosecutor. Subsequently, Hornby sent two of his men to the warehouse of the prosecutor, and, on arriving, they found Hornby and W. G. there. Some yarn was pointed out as the yarn which they were to take to Hornby's premises; and they thereupon, in the presence of Hornby and W. G., carried away the yarn in question. When Hornby was charged he produced the invoice which W. G. gave him on the first occasion, and stated that, except on that occasion, he had had no dealings with him. It was submitted that Hornby was only guilty of receiving the yarn, knowing it to have been stolen; but Coltman, J., held that if Hornby knew that in the transaction in question W. G. was, in fact, committing a felony, he, as well as W. G., was guilty of the same felony; and, therefore, the question for the jury was whether, at the time of the pretended sale by W. G., Hornby knew that W. G. was exceeding his authority and defrauding his master.(0) Going towards the place where a felony is to be committed, in order to assist in carrying off the property, and assisting accordingly, will not make the party a principal if he was at such a distance, at the time of the felonious taking as not to be able to assist in it. The prisoner and J. S. went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were, and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking.(p) So, where a servant let a person into his master's *52] *house, in order that he might steal his master's money, and he continued in the house till the robbery, but the servant left the house before the robbery was (k) Rex v. Tattersal, Sedgwick & Hodgson, East. T. 1801, MS. Bailey, J. (2) Id. ibid. (m) Id. ibid. (n) Reg. v. Kelly, 2 C. & K. 379 (61 E. C. L. R.), Maule, J. refused to reserve the point, and the prisoners were convicted. (0) Reg. v. Hornby, 1 C. & K. 305 (47 E. C. L. R.). (p) Reg. v. Kelly, MS. Bayley, J., and R. & R. 421. And see post, Book IV., Of receiving stolen goods. committed, it was held that the servant was an accessory before the fact.(g) So, where on an indictment for stealing in a dwelling-house, it was proved that a servant had unlocked the door of the house, in order that another person might get in and steal the property, which he did about twenty minutes after the servant had left the house, it was contended that, as it was clear that if the servant had been indicted for house-breaking and stealing, he might have been convicted ;() that showed that he was guilty of stealing the money, for that could not depend upon the form of the indictment. But it was held that the servant was only an accessory before the fact to the offence charged in this indictment.(s) So, where three prisoners were jointly indicted for maliciously wounding with intent to maim, &c., and one of them did not come up and take any part until the wound had been inflicted by the others, it was held that the latter only could be convicted, though the former kicked the prosecutor several times after he came up.(t) So, if two prisoners go to a house, intending to commit a theft in it, and one enters first and is apprehended, and then the other enters and commits the theft, the former is only an accessory before the fact.(u) But where a man committed a larceny, in a room of a house, in which room he lodged, and threw a bundle containing the stolen property out of the window to an accomplice who was waiting to receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice; but as the jury had found that the thief threw the things out of the window, and that the accomplice was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong.(v) So, where on an indictment against George P. for stealing, and Henry P. for receiving pork, it appeared that the prisoners were seen conversing together near the prosecutor's premises, and went together to his warehouse, and George went into the warehouse and took the pork out of a tub, and brought it out of the warehouse and gave it to Henry, who had remained on the outside, and who was not in a position to see what George did in the warehouse, but was sufficiently near to have rendered him aid in case he had been taken into custody; that is to say, the evidence was sufficient to have convicted him as a principal in the second degree; and [*53 the jury having found Henry guilty, upon a case reserved upon the *question whether a person who was a principal in the second degree could, under the above circumstances, be convicted as a receiver of the goods stolen, the judges were unanimously of opinion that he could not; and, therefore, the conviction of Henry was wrong.(w) But in order to make a person who is present when a felony is committed a principal in the second degree, there must be a community of purpose with the party actually committing the felony, at the time when the felony is committed. One count charged Hilton and MEvin with stealing from the person; another charged them with feloniously receiving the stolen property. Hilton was walking by the side of the prosecutrix, and M'Evin was seen just previously following behind her. The prosecutrix felt a tug at her pocket, found her purse was gone, (9) Reg. v. Tuckwell, C. &. M. 215 (41 E. C. L. R.), Coleridge, J. It is not stated how long before the theft the servant left. (r) Reg. v. Jordan, 7 C. &. P. 432 (32 E. C. L. R.). (a) Reg. r. Jeffries & Bryant, Gloucester Spr. Ass. 1848, Cresswell and Patteson, JJ., MSS. C. S. G. 3 Cox C. C. 85. (t) Reg. v. M'Shane, C. & M. 212 (41 E. C. L. R.), Tindal, C. J. (a) Reg. v. Johnson, C. & M. 218 (41 E. C. L. R.), Maule, J., and Rolfe, B. (r) Rex r. Owen, R. & Mood. C. C. R. 96. () Reg. v. Perkins, 2 D. C. C. 459. This case must not be taken to decide that a principal cannot, under any circumstances, be a receiver, as the marginal note would seem to indicate. If a principal were to deliver the goods to another, and afterwards a a distance from the place where the felony was committed were to receive them againt there can be no doubt that he might be convicted as a receiver. C. S. G. and, on looking round, saw Hilton behind her, walking with M'Evin in the opposite direction, and saw her hand something to M'Evin. The jury were directed that, if they did not think, from the evidence, M'Evin was participating in the actual theft, it was open to them on these facts to find him guilty of receiving. The jury found Hilton guilty of stealing and M-Evin guilty of receiving; and it was held that the direction was right, as to make M'Evin a principal in the second degree that there must have been a community of purpose with Hilton in the actual stealing.(x) When an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal. Thus, if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a murder or other crime, the inciter is the principal ex necessitate, though he were absent when the thing was done.(y) Where, therefore, on an indictment for larceny it appeared that the prisoner had induced a child of the age of nine years to take money from his father's till and give it him, Wightman, J., left it to the jury to say whether the child was an innocent agent, that is, whether he knew that he was doing wrong, or was acting altogether unconsciously of guilt and at the dictation of the prisoner.(z) And if a man give another a forged note that the other may utter it, if the latter be ignorant of the note being forged, the uttering by the latter is the uttering of the former, though the former were absent at the time of the actual uttering. (a) But if the person who received the note knew that it was forged, the person who gave it would not be punishable as a person. (b) For where a person having incited another to lay poison, is absent at the time of laying it, he is an accessory only, though he prepared the poison, if the person laying it is amenable as a principal; but is punishable as a principal if the person laying the poison is not so amenable. (c) Where a prisoner went to a die-sinker and ordered four dies of the size of a shilling to be made, stating them to be for two whist clubs. One die was to *54] be exactly like the obverse side of a shilling, another with an inscription, a third exactly like the reverse side of a shilling, and the fourth with an inscription; and before making them, the die-sinker communicated with the officers of the Mint, who directed him to execute the prisoner's order, which he did by making the first and third dies, and from these counterfeit shillings could be coined; it was held that the prisoner was the principal felon, as the die-sinker was an innocent agent. (d) So, where the prisoners had applied to an artist to engrave a copy of the coupons of the Netherlands Bank, and the artist, suspecting that there was an intention to defraud, communicated with the Dutch consul, and, under his direction, employed persons to engrave the plate in pursuance of the orders given him; it was held that the authority given was better than the one held sufficient in the preceding case, and that the artist was an innocent agent.(e) Where poison is laid for a man, and all who were present and concurred in laying it are absent at the time it is taken by the party killed by taking it, all are principals; otherwise all would escape punishment.(f) Bull in London, and Schmidt on the Continent, were engaged in planning the forgery of a plate, as appeared by letters which had passed between them. The order for the plate was, however, given by Bull to an innocent agent before Schmidt came to England. On his arrival he and Bull went to the manufacturer, and the plate was given to them. It was contended that Bull was the principal, and that Schmidt was only an accessory before the fact. That it was precisely the same as if Bull had engraved the plate, and, if so, Schmidt was only an accessory. Tindal, C. J.: "That reasoning would be good if the actual maker had been a guilty party, because (x) Reg. v. Hilton, 1 Bell C. C. 20. (y) Fost. 349; Kel. 52; post, Book III. p. 669. (a) Rex v. Palmer & Hudson, 1 New Rep. 96; post, Book IV. (c) Fost. 349. (d) Reg. v. Bannen, 2 M. C. C. 309, 1 C. & K. 295 (47 E. C. L. R.). |