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STATE v. ALLEN.

(Supreme Court of Errors of Connecticut, 1879. 47 Conn. 121.) Indictment for murder in the Superior Court for Hartford county. The prisoner was indicted with Harry Hamlin and John H. Davis for the murder of Welles Shipman, a watchman at the state prison; the murder having been committed in an attempt of the defendant and Hamlin, who were convicts, to escape from the prison. The jury found a verdict of murder in the first degree. The defendant thereupon moved for a new trial for error in the rulings and charge of the court, and also filed a motion in error.1

BEARDSLEY, J. The motion for a new trial shows that upon the trial it was claimed by the state that the accused and one Henry Hamlin, both of whom were lawfully confined in the state prison, conspired to escape from such confinement, and to use all means which might become necessary to effect such escape, even to the taking of the life of any one who might oppose them, should it become necessary to do so in order to overcome such opposition; that in pursuance of such combination they provided themselves with two loaded revolver pistols, one a seven-shooter, and the other a fourshooter, and with handcuffs and a gag, and on the evening of Septem ber 1, 1877, escaped from their cells and secreted themselves in the hall of the prison, where they were discovered by Welles Shipman, an armed night watchman of the prison, and that thereupon they both fired at Shipman, who was wounded by one of the shots, and died from such wound on the next day; and that after Shipman was wounded he ran towards the alarm bell, pursued by the accused and Hamlin, who overtook him, when he sank insensible upon the corridor, and was then handcuffed and gagged by them; that Allen then went to his cell about 150 feet distant, leaving Hamlin with Shipman, where he was discovered and fired at by the guard of the prison; and that thereupon Hamlin went to the cell of Allen, and that both then broke into the attic and were taken the next morning. The state claimed that Shipman was shot before he was handcuffed.

It was claimed by the defense that, if there was any conspiracy between the accused and Hamlin, it was merely to bribe an officer of the prison to permit them to escape, and that whatever was done after Shipman discovered the accused and Hamlin was not in pursuance of any plan or conspiracy, and that immediately after Shipman was handcuffed and gagged Allen abandoned the enterprise and went to his cell, and that Shipman was afterwards shot by Hamlin alone.

The court charged the jury as follows: "If the jury shall find that Hamlin and Allen, at some time previous to the homicide, made up their minds in concert to break the state prison and escape there

1 The statement is abridged, and part of the opinion is omitted.

from at all hazard, and knowing that the enterprise would be a dangerous one and expose them to be killed by the armed night watchman of the prison, should they be discovered in making the attempt, willfully, deliberately, and premeditatedly determined to arm themselves with deadly weapons, and kill whatever watchman should oppose them in their attempt, and if the jury should further find that in pursuance of such design they armed themselves with loaded revolvers to carry their original purpose into execution, and while engaged in efforts to escape from the prison were discovered by the watchman, Shipman, the deceased, and in the scuffle which ensued he was willfully killed by Hamlin or Allen while they were acting in concert and in pursuance of their original purpose so to do in just such an emergency as they now found themselves in, then Hamlin and Allen are both guilty of murder in the first degree. And in the opinion of the court Allen would be guilty of murder in the first degree, if, in the state of things just described, he in fact abandoned, just before the fatal shot was fired by Hamlin, all further attempt to escape from the prison, and the infliction of further violence upon the person of Shipman, without informing Hamlin by word or deed that he had so done, and Hamlin, ignorant of the fact, shortly after fired the fatal shot in pursuance of and in accordance with the purpose of the parties down to the time of the abandonment."

We do not think that the objection made by the defense to this part of the charge is well founded. Under such circumstances, Allen's so-called abandonment would be but an operation of the minda secret change of purpose. Doing nothing by word or deed to inform his co-conspirator of such change of purpose, the reasonable inference would be that he did not intend to inform him of it, and thus he would be intentionally encouraging and stimulating him to the commission of the homicide by his supposed co-operation with him. Such intent not to inform Hamlin of his change of purpose would, under the circumstances, be decisive of his guilt.

But the charge proceeds: "In other words, if during the fatal encounter with deadly weapons, in the state of things just described, Allen suddenly abandoned Hamlin, abandoned the enterprise, and went to his cell without saying a word to Hamlin to the effect that he had abandoned the enterprise, and Hamlin, supposing that he was still acting with him and that he had gone to his cell for an instrument to carry on the encounter, fired the fatal shot, his abandonment under such circumstances would be of no importance. A man cannot abandon another under such circumstances and escape the consequences of the aid he has rendered up to the time of the abandonment."

A majority of the court think that the jury may have been misled by this part of the charge, and that therefore, especially in view of the grave issues involved in this case, a new trial should be granted. If Allen did in fact before the homicide withdraw from the con

piracy, abandon the attempt to escape, and with the knowledge of Hamlin leave and go to his cell, Hamlin's misconstruction of his purpose in leaving did not necessarily make his conduct of no importance.

Until the fatal shot there was the "locus penitentiæ." To avail himself of it Allen must indeed have informed Hamlin of his change of purpose, but such information might be by words or acts; and if, with the intention of notifying Hamlin of his withdrawal from the conspiracy, he did acts which should have been effectual for that purpose, but which did not produce upon the mind of Hamlin the effect which he intended and which they naturally should have produced, such acts were proper for the jury to consider in determining the relation of Allen to the crime which was afterwards committed.

Allen's act of leaving and going to his cell, if he did so, had some significance in connection with the question of intention and notice, and was therefore proper for the consideration of the jury. How much weight was to be given to it would depend upon circumstances, such as the situation of the parties and the opportunity for verbal or other notice.

The same observations are perhaps applicable to the charge of the court in answer to the sixth request for instructions. While it is clear that the request as made should not have been complied with, the charge that was given may be open to the implication that some notice of Allen's abandonment of the conspiracy must have been given by him to Hamlin beyond that afforded by his act of leaving. The answers of the court to the other requests for instructions seem to us, in view of the claims of the counsel and the admitted facts in the case, to be correct and sufficiently explicit.

A new trial is advised.

GRANGER, SANFORD, and HOVEY, JJ., concurred. LOOMIS, J., dissented.

SECTION 3.-ACCESSORY BEFORE THE FACT.

Accessories, again, are of two kinds-accessories before the fact committed, and accessories after.

An accessory before is he that, being absent at the time of the felony committed, doth yet procure, counsel, command or abet another to commit a felony, and it is an offense greater than the accessory after; and therefore in many cases clergy is taken way from accessories before, which yet is not taken away from accessories after, as in petit treason, murder, robbery, and willful burning by St. 4 & 5 P. M. c. 4. Hale, P. C. c. 55.

This kind of accessory after the fact is where a person, knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon. This, as hath been said, holds place only in felonies, and in those felonies where, by the law, judgment of death ought regularly to ensue, and therefore there is no accessory in petit larceny, homicide per infortunium, or homicide se defendendo. Edw. III, Coron. 116. Hale, P. C. c. 56.

REX v. KELLY.

(Court for Crown Cases Reserved, 1820. Russ. & R., 421.)

The prisoner was tried and convicted before Mr. Justice Bayley at the Summer Assizes for Carlisle, in the year 1820, of stealing two horses.

It appeared in evidence that the prisoner and one Whinroe went to steal the horses. Whinroe left the prisoner when they got within half a mile of the place where the horses were. Whinroe stole the horses, and brought them to the place where the prisoner was waiting for him, and then the prisoner and Whinroe rode away with them.

The learned judge thought the owner's possession was not destroyed by Whinroe's theft, and that the prisoner's joining in riding away with the horses might be considered as a new larceny; but, upon adverting to the case of Rex v. King, before the judges in Easter Term, 1817, he thought his first opinion wrong, and reserved the case for the consideration of the judges.

In Michaelmas Term, 1820, the judges met and considered this case. They held the conviction wrong, being of opinion that the prisoner was an accessory only, and not a principal, because he was not present at the original taking.

PARKE, J., in REX v. COOPER, 5 Car. & P., 535 (1833): With respect to an accessory before the fact, it is not necessary that there should be any direct communication between the accessory and the principal. It is enough if the accessory direct an intermediate agent to procure another to commit the felony; and it will be sufficient, even though the accessory does not name the person to be procured, but merely directs the agent to employ some person.

REGINA v. TRACY.

(Queen's Bench, 1703. 6 Mod. 30.)

Tracy, a justice of the peace for Middlesex, was indicted, for that he, together with Taylor and Jeoffries, by pretense of a certain warrant in writing, supposed to be signed and sealed by Sir Simon Lovell, recorder of London, did arrest J. Muriel, and brought him before J. Chamberlain, a justice of the peace for Middlesex, although the warrant was not directed to any of them, and although it was forged and counterfeited to Tracy's knowledge; and that Tracy, when Muriel was before the justice of the peace, persuaded him to refuse to bail him, though the fault being a misdemeanor was in its nature bailable; and that when J. Muriel was committed by the justice, Tracy and the other two, at the persuasions and instance of Tracy, extorted divers sums of money from him.

The jury acquitted the defendant of the forgery, and of knowing that the warrant was forged, and found him guilty of all of the rest. Wells and Parker now moved in arrest of judgment.

Fifthly. As to some part of the charge, they charge him as accessory, when, it being trespass, they are all principals, and it ought to be charged as such.

HOLT, Chief Justice. As to the fifth objection, that he is not in some things charged as a principal. It is to be known, that a fact which would make one accessory in felony, in treason, and in trespass, makes him a principal; and sure one may lay the matter either way, viz., making him principal or laying it special, as it will appear upon evidence. In treason all are principals; and if upon the statute of 25 Edw. III, c. 2, one conspires the death of the queen, and is committed to prison for the same, and one procures him to escape, or harbors him after such time as he knows him charged with treason, or to have committed treason, you may indict him upon the special matter, that A committed treason, that B knew of it and received him; and yet this is not one of the treasons mentioned by that statute, but it is so by necessary consequence of law. As if a thing be made a felony, all accessories before and after are felons in consequence; and if an offense which is felony be made treason, they that would have been accessories before shall now be principals."

1 Only so much of this case as relates to accessories is printed.

2 Accord: Misdemeanor, Commonwealth v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475 (1822); Reg. v. Moland, 2 Moo. 276 (1842); Lowenstein v. People, 54 Barb. (N. Y.) 299 (1863); State v. Dewer, 65 N. C. 572 (1871); Wagner v. State, 43 Neb. 1, 61 N. W. 85 (1894); Bliss v. U. S., 105 Fed. 508. 44 C. C. A. 324 (1900); treason, Throgmorton's Case, 1 Dyer, 98b (1553). But see U. S. v. Burr, 4 Cranch (U. S.) 469 (1807).

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