A principal in the first degree is either, one who being absent, commits the crime through the means of an innocent agent, or, who is present and personally commits it, or personally takes part in its commission.

By an innocent agent is meant one who does not know that he is assisting in the perpetration of a crime, or, if he does, is yet, by reason of a lack of criminal capacity or because his will is overcome by threats and intimidation, not legally responsible for the crime. The doctrine that one who commits a crime by the hand of an irresponsible agent is a principal in the first degree grows out of the self-evident principle that there must be some one who is responsible for every crime, and such is the situation of a principal in the first degree. But where one, being absent, procures a crime to be committed by a guilty agent—that is, by one who is criminally responsible for it-it is the guilty agent who is principal in the first degree, and, as we shall presently see, the one who procures the act to be done is called an accessory before the fact,

A principal in the second degree is one who shares the guilty purpose and, while not taking part in the actual commission of the crime, is present, encouraging, assisting, or abetting its commission, or is so near, as to be of material service to the criminal at the very time of the commission, and is there for that purpose.

There must be a principal in the first degree before there can be a principal in the second degree. It is essential that a principal in the first degree should have a criminal intent, or, as it is expressed above, a

guilty purpose. Therefore, where the one who actually does the criminal act which would make him principal in the first degree if he had a criminal intent, has in fact no criminal intent, the one who aids and abets, having himself a criminal purpose, is not a principal in the second degree because he does not, in the language of the definition, share in a guilty purpose.

Two men agreed to commit statutory burglary together. One of them, the only one who actually entered the building, did it simply for the purpose of entrapping the other. He went into it, with the sanction of the persons whose building was to be robbed, for this purpose. As he had no criminal intent, he was not guilty of burglary, and since he was not guilty of burglary, neither was the one who aided and abetted.2

An accessory before the fact is one who procures, advises, commands, or solicits a crime to be com mitted by a guilty agent, or, furnishes aid in advance towards its commission, but is not present when the crime is committed, and does not, at that time, aid or abet its commission. 3

The thoughtful reader will readily see that when it is necessary to determine in what relation an accused person stands towards a crime the two facts to be inquired into are these: Where was the accused when the crime was committed? What part did he take in its commission or in procuring it to be committed? When these two matters of fact are determined the principles laid down will suffice to determine in which class he must be placed.

'State vs. Hayes, 16 S. W. Rep., 514. 'People vs. Lyon, 5 Am. Cr., 10.

Principals in the first degree must always commit the crime itself, either personally or by the instrumentality of an innocent agent.

Principals in the second degree do not commit the crime itself, but encourage, aid, abet or assist its commission, at the very time it is being committed.

Accessories before the fact are not present when the crime is committed, and do not at that time aid, assist, encourage or procure its commission, but have done some or all of these things in advance of the actual commission of the crime.

A few illustrative cases will suffice to show the scope of these legal theorems:

In Com. vs. Hill, 11 Mass., 136, it appeared that the prisoner gave a counterfeit bank note to a boy of eleven years of age, and told him that if he would get. it changed he would give him half. The boy did so, not knowing that the bill was counterfeit. It was held that the prisoner was a principal in the first degree.

In Gregory vs. State, 26 Ohio St., 510; 2 Am. Cr., 146, the prisoner was charged with uttering and publishing a forged promissory note.

It appeared that the prisoner had some business with the man, whose name was forged to the note, in the course of which the latter had to sign some papers. As he was unable himself to write his name, he called his daughter to do it for him. While her father's attention was diverted the prisoner took the opportunity to get the daughter to sign his name to this note, representing to her that it was one of the papers which her father had to sign. It was held that the respondent was guilty of forgery, and that the daughter, being an innocent instrument, he was a principal in the first degree.

In Regina vs. Mitchell, 2 Moody, 120, it appeared that the prisoner, intending to kill a child, gave poison to the child's nurse, telling her it was proper medicine for the child. The nurse took the poison home with her, but did not intend to administer it. She left it exposed, and her little son got hold of it and gave it to the child, causing its death. It was held that as the poison was administered to the child by an innocent agent, and while the prisoner still intended to kill the child, she was guilty as principal in the first degree.

In Doan vs. State, 20 Ind., 495, the respondent was indicted for statutory burglary. The proof showed that while two other persons broke and entered the storehouse the prisoner remained outside, watching and ready to render them assistance in case it might be required. He was held to be principal in the second degree.

In State vs. Hamilton, 18 Nev., 386, five persons conspired to rob a stage. In pursuance of the agreement one of them lighted a fire on a mountain forty miles distant from the scene of the attempted robbery, in order to give the others notice of the approach of the stage. The other four met the stage and attempted the robbery. The one who lighted the fire was held to be a principal in the second degree.

In Breese vs. State, 12 Ohio St., 140, it was held that where one of two persons, in order to commit a burglary, decoyed the owner of the house to a distant place and kept him there until the burglary had been committed by the other, he was a principal in the second degree.

In Com. vs. Bowen, 13 Mass., 356, it appeared that two prisoners were confined in adjoining cells within hearing of each other. One advised the other to commit suicide, which he did, and it was held that the

adviser was guilty of murder as a principal, and the same doctrine was held in Regina vs. Allison, 8 Car. & P., 418.

If, before the birth of a child, a person advises the mother to murder it when born, and she does so, the adviser is an accessory before the fact in the murder.1

There is a case in which it appeared that a household servant joined in a plan to rob his master's house. In pursuance of the plan he let the man into the house and concealed him until the next morning when the servant went away. After his departure the concealed accomplice stole the householder's money, and it was held that the thief was principal in the crime and that the servant was accessory before the fact.5

The most important questions which have arisen with regard to persons who have been charged ‹ 3 accessories before the fact are cases in which the question has been raised whether or not the alleged accessory before the fact had such an intent as made him an accessory to the crime which was actually committed, he not having advised or procured the commission of that identical crime.

In our previous discussion of the question of crimi nal intent, we have had occasion to point out that a man may be guilty of a crime while not intending to commit that particular crime."

The principles which were then explained apply with equal force to a case where a man aids or abets the commission of a crime in which, however, he is not to be personally concerned, but which is to be consummated by the hand of another. One who

'Parker's case, 2 Dy., 186.

'Regina vs. Tuckwell, Car. & M., 215.

'See p. 33.