31 excuse himself under the plea of necessity for taking the life of an innocent person. Lord Bacon, indeed, in hist Maxims, states that: "If divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, * and another, to save his life, 32 thrust him from it, whereby he is drowned, this is * justifiable." 82 But this statement of the law was disapproved by the English court in a case where it was held that shipwrecked persons, who put to death a boy upon the chance of preserving their lives by feeding upon the body, although otherwise they would probably not have survived, and the boy, being in a weak condition, was likely to have died before them, were guilty of murder. 33 A somewhat similar case had previously arisen in this country, where a sailor was charged with felonious homicide in throwing passengers out of a boat to save his life. The court said that, if two persons who owe no duty to one another, should be placed in a position where both cannot survive, neither would commit a crime in saving his life in a struggle for the only means of safety; but the court held that, as the defendant was a seaman, and the persons thrown out were passengers, the defendant owed them a duty, and was not justified in sacrificing their lives to save his own.31 and that the evil inflicted by it was not disproportionate to the evil avoided." Steph. Dig. Cr. Law, art. 32, citing Rex v. Stratton, 21 How. St. Tr. 1045, Bac. Max. No. 5, and (with some adverse comment) U. S. v. Holmes, 1 Wall. Jr. 1, Fed. Cas. No. 15,383. See criticisms upon this article and upon the cases cited by Lord Coleridge in Reg. v. Dudley, 15 Cox, Cr. Cas. 624, 14 Q. B. Div. 273. 31 Reg. v. Dudley, 15 Cox, Cr. Cas. 624, 14 Q. B. Div. 273; Arp v. State, 97 Ala. 5, 12 South. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137. But see U. S. v. Holmes, 1 Wall, Jr. 1, Fed. Cas. No. 15,383. 32 Bac. Max. No. 5. 33 Reg. v. Dudley, supra. 84 U. S. v. Holmes, supra. The court also said: "When a ship is 36 Lord Bacon also says that, "if a man steals viands to satisfy his present hunger, this is no felony nor larceny"; " but this is probably not the law at the present day. It has been held, however, on an indictment for retailing spirituous liquors without a license, where it appeared that the sale was made by druggists on a physician's prescription, and was bought, sold, and used in good faith as medicine, that the defendant was not guilty, on the ground that the sale was not within the mischief which the statute was intended to suppress.37 It has also been held that one is not guilty of the breach of a statute against stopping vehicles in the street if the one which he was driving was unavoidably stopped by the exigencies of traffic.38 Statutes forbidding labor on Sunday usually contain a proviso excepting work of necessity. In such cases a necessity brought about through the negligence of the accused is not an excuse." 39 Physical necessity or impossibility, however, is an excuse for failure to perform a duty. Thus, where the defendant was indicted for failure to repair a highway which it was his duty to repair, and it appeared that the land over which in danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary in order to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode, and in some sort, as an appeal to God for the selection of the victim." "I doubt whether an English court would take this view. It would be odd to say that two men on a raft were bound to toss up as to which should go." Steph. Dig. Cr. Law, art. 32, note 1. 35 Bac. Max., supra. 36 1 Hale, P. C. 54. See opinion of Lord Coleridge in Reg. v. Dudley, supra. 87 State v. Wray, 72 N. C. 253. 88 Com. v. Brooks, 99 Mass. 434. 89 State v. Goff, 20 Ark. 289. the road passed had been washed away by the sea, it was held that this, being an act of God, relieved him from liability.10 PROVOCATION 42. Provocation is no ground for exempting one absolutely from criminal responsibility for his acts, but may be ground for mitigating the punishment. A person who commits a crime cannot escape liability altogether by showing that he was provoked; but the fact that a crime was committed under provocation may sometimes be ground for inflicting less severe punishment in cases of homicide and assault. The law in these cases regards the infirmities of human nature, and recognizes the fact that a man may be provoked to such an extent that in the heat of sudden passion, caused by the provocation, he may strike a blow before he has had time to think and to control himself, and therefore does not punish him so severely as if he had acted deliberately. This is a matter relating more peculiarly to homicide, and will be fully explained when we come to treat of homicide.11 40 Reg. v. Bamber, 5 Q. B. 279. See, also, Com. v. Brooks, 99 Mass. 434. 41 Post, p. 218. CHAPTER VI PARTIES CONCERNED IN THE COMMISSION OF CRIMES 43. Effect of Joining in Criminal Purpose. 44-45. Principals and Accessaries. 46. Principals in the First Degree. 47. Principals in the Second Degree. 48. Accessaries before the Fact. 49. 50-51. Accessaries after the Fact. Use of Terms "Aider and Abettor" and "Accomplice." 52. Principal's Liability for Acts of Agent. 53. Agent's Liability for His Own Acts. EFFECT OF JOINING IN CRIMINAL PURPOSE 43. Where several persons join in the execution of a common criminal purpose, each is criminally liable for every act done in the execution of that purpose, whether done by himself or by his confederate.1 A crime is not always committed by a single individual; several persons may be concerned in different degrees, some of them by actually doing the deed, others by standing by and abetting it, others by having advised or commanded it, though absent when it is committed, and still others by assisting in the escape of one concerned. Whenever persons join for the purpose of executing a common criminal purpose, each one is the agent of the other as to all acts in furtherance thereof, and each is criminally liable for such acts of the others. It is otherwise, however, as to acts not in furtherance of the common purpose. This, of course, does not apply to persons assisting after the act. We will 1 Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St.. Rep. 320. See, also, post, pp. 115, 120, 162. now see what these degrees of criminality are, the extent of participation necessary to render one liable, the acts for which each participant is liable, and the nature of his liability. PRINCIPALS AND ACCESSARIES 44. Parties concerned in the commission of felonies are principals or accessaries according as they are pres ent or absent when the act is committed. Principals are either: (1) Principals in the first degree, or (2) Principals in the second degree. Accessaries are either: (1) Accessaries before the fact, or. 45. The distinction between principals and accessaries is recognized in felonies only. This distinction between principals and accessaries is recognized in felonies only. The same participation or assistance which in case of a felony would make one an accessary before or after the fact will make him a principal in trea 22 Co. Inst. 183; 1 Hale, P. C. 233; 4 Bl. Comm. 35; Reg. v. Clayton, 1 Car. & K. 128; Ward v. People, 6 Hill (N. Y.) 144; Baker v. State, 12 Ohio St. 214; Van Meter v. People, 60 Ill. 168; Stevens v. People, 67 Ill. 587; Stratton v. State, 45 Ind. 468; State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; State v. Murdoch, 71 Me. 454; State v. Lymburn, 1 Brev. (S. C.) 397, 2 Am. Dec. 669; Com. v. Gannett, 1 Allen (Mass.) 7, 79 Am. Dec. 693; State v. Gaston, 73 N. C. 93, 21 Am. Rep. 459; Engeman v. State, 54 N. J. Law, 247, 23 Atl. 676; Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56. This principle applies to actions for penalties for breach of municipal ordinances. Village of St. Johnsbury v. Thompson, 59 Vt. 300, 9 Atl. 571, 59 Am. Rep. |