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consent; and to the denial of his motions to be discharged at the closing of the state's evidence, in arrest of judgment, and for a new trial. SCOTT, C. J. The assignments of error present the question: Whether one who incites or procures another to commit an assault and battery, at the commission of which he himself is not present, and does not otherwise participate therein, can, in this state, be properly indicted and convicted as a principal in the offense. At common law it is clear that he would be liable as a principal. For the doctrine of the common law is that in misdemeanors, and in all crimes under the degree of felony, there are no accessories, but all persons concerned therein, if guilty at all, are principals. 4 Bl. Com. 36, Whart. Am. Cr. Law 118. So it is said: "One who incites others to commit an assault and battery is guilty, and may be punished as a principal, if the offense be actually committed, although he did not otherwise participate in it; as whatsoever will make a man an accessory before the fact in felony will make him a principal in treason, petit larceny, and misdemeanors." Id. 547. But it is claimed that this rule can have no application in this state, because we have no common law crimes or offenses. But is this conclusion a logical sequence of the fact stated? An assault is an offense, not only at common law, but also by our statute; while neither the common law nor the statute makes it a distinct, substantive offense to aid or abet another in the commission thereof. The statute does not define an assault, nor specify the acts or degree of participation which will render a party guilty thereof. These are matters which the statute leaves to be determined by the definitions, rules, and principles of the common law. So far as these rules remain unchanged by the statute, they are applicable, and must govern. And while it is true that the statute makes it a substantive offense to aid or abet another in the commission of certain specified misdemeanors, yet this is not the case in regard to an assault and battery. Judgment affirmed. Baker v. S., 12

Ohio St. 214, F. 126.

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As to common law of crimes in Ohio, see also, Smith v. S., § 12, and compare § 7.

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(Ind. Sup. Ct., 1866.) Indictment-Variance-Burglar's Guard. Appellant was convicted of burglary on proof that he stood outside, watching, and ready and near enough to assist, while his confederates entered and took the goods. RAY, J. It is objected that the appellant was not charged as an aider and abettor, but as a principal. This was correct. At common law it was not required, in order to constitute one a principal in an offense, that the party charged should have been an eye-witness of the transaction, or within. hearing. It was sufficient that he had knowledge of the crime, and watched near enough and ready to assist those actually engaged, if required. That made a presence aiding and abetting, and constituted him a principal in the second degree, and he could be charged and convicted as a principal. * That presence renders him

who would otherwise have been but an accessory before the fact a principal in the second degree. "The law, however," says Archbold, "recognizes no difference between the offense of the principal in the first degree, and of the principal in the second. Both are equally guilty.' [Reversed for an error in the charge to the jury.] Doan v. S., 26 Ind. 495, F. 124, Kn. 89.

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(Ind. Sup. Ct., 1874.) Same. One present aiding and abetting an assault and battery is a principal in the second degree, and not an accessory, though he takes no physical part in the matter; his conviction on an indictment as principal in the first degree was sustained by proof that he was principal in the second degree. Affirmed. Williams v. S., 47 Ind. 568, F. 125.

ACCESSORIES.

§ 76. "Before the Fact."

(Eng. Assize, 1878.) Accessory Present. F. Brown was indicted for murder and his wife as accessory before the fact. She stood within a few feet when the fatal blow was struck. COLERIDGE, C. J., directed an acquittal of the female, pointing out that she should have been indicted as principal if anything. An accessory before the fact must be absent, and the act must be done on his counsel or procurement. R. v. Brown, 14 Cox C. C. 144, B. 389.

§ 77. "After the Fact."

(Eng. C. C. R., 1569.) Keeping Witnesses Away. Catlin and Browne, justices of assize in the county of Suffolk, put this case to all the judges: A man committed felony, for which he was committed to the jail; and R., an attorney, advised the friends of the felon to persuade the witnesses not to appear to give evidence against him, which was done accordingly. And it was resolved, that neither the friends nor the attorney were accessories to the felony, but that it was a great contempt and misprison, for which they might be fined and imprisoned. Roberts's Case, 3 Coke Inst. 138, Mi. 495.

(Va. Ct. of App., 1875.) Generally. F was swindled of $570 in a bogus lottery by Dull, and applied to Wren, a police detective of Richmond city, to get his money back. They went to Dull's house and found it closed. When F and his lawyer were going into the office of a justice of the peace for a warrant to arrest Dull, Wren said he had brought Dull down. The three went to where Dull was and demanded the money. He denied liability, but finally a settlement in full was made by his paying F $285; whereon Wren asked

pay for his services, which F refused. Dull was soon arrested, and Wren followed him to the station house, swore he would have him bailed and show up the others, and Dull attempted to hand him something as the police captain was about to search him. This is the substance of the evidence against Wren, on which he was convicted of being accessory after the fact to Dull's crime. Motion for a new trial being denied, he brought error. CHRISTIAN, J. * The accused is charged with accessorial guilt. He is charged in the indictment with unlawfully receiving, harboring and maintaining John Dull, knowing him to have committed a felony. This charge constitutes what the law denominates "an accessory after the fact." The common law definitely and distinctly defines who is such an offender. He is a person who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon. 1 Hale P. C. 618; 1 Arch. Crim. P. 78, and cases there cited. The reason on which the common law makes a party in such a case criminal, is that the course of public justice is hindered, and justice itself is evaded by facilitating the escape of the felon. To constitute one an accessory after the fact, three things are requisite: 1, the felony must be completed; 2, he must know that the felon is guilty; 3, he must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony. 2 Hawk. P. C., c. 29, § 32. And although it seemed at one time to be doubted, whether an implied notice of the felony will not in some cases suffice, as where a man receive a felon in the same county in which he has been attainted, which is supposed to have been a matter of notoriety, it seems to be the better opinion, that some more particular evidence is requisite to raise the presumption of knowledge. 1 Hale 323, 622, 3 P. Wms. 496, 4 Bl. Com. 37. But knowledge of the commission of the felony must be brought home to the accused, and whether he had such knowledge is always a question for the jury.

As to the Receiving, Relieving, and Assisting one known to be a felon, it may be said in general terms, that any assistance given to one known to be a felon in order to hinder his apprehension, trial or punishment, is sufficient to make a man accessory after the fact; as that he concealed him in the house, or shut the door against his pursuers, until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape; or conveyed instruments to him to enable him to break prison and escape. This and such like assistance to one known to be a felon, would constitute a man accessory after the fact. 1 Hale 619, 621, 2 Hawk. c. 29, § 26. But merely suffering the principal to escape, will not make the party accessory after the fact; for it amounts at most but to a mere omission. 1 Hale 619,

9 H. iv. 1. Or if he agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities; none of these acts would be sufficient to make the party an accessory after the fact. If the thing done amounts to no more than the compounding a felony, or the misprison of it, the doer will not be an accessory. 1 Bishop C. L., § 633; 1 Hale P. C. 371,

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Now Applying These Well Recognized Principles to the case before us, we are of opinion that the commonwealth has failed to show that the plaintiff in error is an accessory after the fact to the felony committed by Dull. His failure to make the arrest himself, nor his effort, or expressed purpose to get him bailed after his arrest, nor his threat that as Dull is to be shown up others should be shown up also, none of thes acts constitute Wren an accessory after the fact to the felony committed by Dull. If, knowing that a felony had been committed, he concealed it, then he is guilty of misprison of felony. If, knowing a felony to be committed, he concealed it or forbore to arrest and prosecute the felon, for fee or reward, then he is guilty of compounding a felony. Both of these are grave offenses, but they do not (if proved) constitute a party an accessory after the fact. Reversed. Wren v. C., 26 Gratt. (Va.) 952, Kn. 97.

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(Tex. Ct. of App., 1888.) Suppressing and Perverting Evidence. Appellant was convicted of accessory to murder, on proof that after the murder was committed he induced witnesses to testify at the coroner's inquest that the murderer (May) shot in self-defense while being pursued by deceased with a knife. Appellant contends that under the statute "aid" means something which relates to the WHITE, P. J. physical conduct of the offender.

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Mr.

Bishop says: "The true test whether one is an accessory after the fact or not is whether what he did was by way of personal help to his principal to elude punishment; the kind of help being unimportant." 1 Bish. Cr. Law (Ed. 7), § 695. * * We are of opinion that the facts we have stated, and upon which this case rests, brings it within the purview of the general law and our statute as to accessories. Appellant, if he did not in fact conceal May until the perjured testimony was given which justified him before the inquest, certainly aided him to the extent that he was not arrested and punished for his crime until the perjury was discovered, and but for the discovery the aid which defendant attempted to give him. would have proven effectual in affording him perfect and complete immunity from apprehension, trial, and punishment for the murder he had committed. It is true that, under the facts disclosed, defendant might have been prosecuted and convicted, under our statute, for subornation of perjury (Pen. Code, art. 199); but this fact did not destroy nor affect his relation to the murder as an accessory. It was simply a question with the prosecution as to which of the

offenses he should be tried for. [Judgment reversed for insufficiency of evidence to sustain conviction being the uncorroborated testimony of accomplices.] * * Blakeley v. S., 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, F. 128.

DEFENSES.

§ 78. Generally. The principal must be convicted before the accessory can be tried (in the absence of statute changing the common law), there must be proof of complicity between the parties, and the crime committed must have been within the scope of the original design, or a natural consequence of its execution. Abandonment before the crime was committed is also a defense.

§ 79. "The Principal Must be Convicted Before the Accessory can be Tried."

Our

(Mass. Sup. Judicial Ct., 1820.) Trial of Accessory After Death of Principal. Indictment charging Daniels as principal, and defendant as accessory before the fact, of burglary, and alleging the death of Daniels. PARKER, C. J., stated that the justices had carefully examined the books upon the subject, and were unanimously of opinion that by the common law an accessory cannot be put on his trial, but by his own consent, until the conviction of the principal. The reason of this rule is very plain. If there is no principal there can be no accessory, and the law presumes no one guilty until conviction. Statutes have made a difference as to some lesser species of offenses, but do not touch the principle in capital cases. only doubt arose from the peculiar circumstance in this case, that the person charged as principal is dead, and can never be tried. If he were alive and on trial, it is possible he might establish his innocence, strong as the evidence has appeared in support of his guilt. In such case the prisoner could not be found guilty, for he could not have been accessory to the commission of the crime as charged. The trial might have been stopped at the commencement of it had our minds been then free from all doubt. But as the prisoner has been put on his trial, he has a right to a verdict. Verdict of acquittal directed by the court. C. v. Phillips, 16 Mass. 423, B. 389.

(New York Ct. of App., 1871.) Trial After Convicting One Principal. Plaintiff in error was indicted as accessory before the fact of a burglary committed by four principals named in the indictment. On the trial he objected to being tried till all the principals. were convicted, which being overruled, he objected to being tried as accessory to the crime of any but the one who had been convicted.