principals? It only requires that accessories should be indicted and tried, and punished as such. Wharton, in section 114, says: "One indicted as principal can not be convicted on proof showing him to be an accessory before the fact; " and we add, nor by proof that he afterwards received the stolen goods; for whether accessory before or after the fact, or both combined, he is not a principal.

On the return of the cause, however, the court should proceed to try the accused, on proper indictment, as an accessory, or remand him to the proper county for such proceedings.

Wherefore the judgment is reversed, with directions to set aside the verdict and judgment, and for further proceedings consistent with this opinion.

Judge ROBERTSON, does not concur, believing that the accused is a principal, because the boy acted as his hand; and that the money, whilst in the boy's possession, was still legally in the owner's possession; and that the indictment was sufficient notice of the offense, of which the accused was guilty, and will bar any further indictment, even as an accessory.

PRINCIPAL NOT PRESENT - NOT LIABLE FOR GUILTY AGENT.

WIXSON V. PEOPLE.

[5 Park. C. C. 120.]

In the Supreme Court of New York, February Term, 1860.

1. Where a Felony is Committed by an innocent agent the principal being absent, the latter is guilty; but if the person employed is guilty, the employer is not guilty as a principal but only as an accessory.

2. L. and M. went from W.'s house to a store several miles away, broke in and stole goods which they brought to W.'s house, he helping them to secrete them. The judge instructed the jury that L., M. and W. might all be convicted of larceny. Held, error as to W., who was at most only guilty as an accessory or as a receiver of stolen goods.

ERROR to the Court of Sessions of Steuben County. Wixson, Lockwood and Lee were jointly indicted for burglary and larceny.. Wixson was convicted of larceny and appealed.

D. Rumsey, for plaintiff in error.

C. J. McDowell, District Attorney, for the People.
KNOX, J.

(After passing on other questions.)

The indictment contains three counts, one for burglary, one for larceny, and one for receiving stolen goods, knowing them to be stolen. The defendant was convicted of petit larceny, as appears by the bill of

exceptions, and sentenced to the State prison for five years. This judgment-five years in the State prison for petit larceny, which is punishable only by fine, or imprisonment in the county jail, or both — is manifestly improper. As a matter of fact, this could hardly have happened, and it is said by the district attorney that the conviction was for grand larceny, and that, by mistake, the clerk entered in the minutes a conviction for petit larceny.

If the conviction was really for petit larceny, the judgment must of course be reversed, for the reason suggested; and if for grand larceny, the judgment must be set aside for another reason, to wit: an error in the charge, to which I now call attention.

It seems, by the testimony of Lockwood, upon which, mainly, the conviction of Wixson was had, that he and Lee, at the instigation of Wixson, committed the burglary and larceny charged in the first count of the indictment; and that the property thus stolen was taken to the house of Wixson, and there concealed, with his assistance and advice. It does not appear that Wixson was present when the burglary, etc., were committed, nor was he so near that it could be said that he was constructively present. Indeed, the evidence is to the effect that Wixson, although he instigated the burglary, etc., and knew when it was to be committed, was himself, at the time at home and abed. And yet he was convicted of larceny; and the jury were right in so doing, under the charge of the court, which was: "That although Wixson had no part in breaking the store and taking the goods, yet if he knew it was to be done by Lockwood and Lee, or either of them, and the goods were immediately taken to his house, and he aided in furnishing a box to secrete the goods, and directing where they were to be placed to avoid discovery, and prevent the owner from finding them, so as to convert them to his own use, then he was guilty of larceny."

This charge was clearly erroneous. Under it, Wixson might have been convicted, though he had been a thousand miles from the place where the felony was committed.

That a felony may be committed through the instrumentality of others, though the principal be not present, is well settled, upon the principle, "qui facit per alium, facet per se," which is as applicable to criminal as civil cases. But this is where the "other" or agent is an innocent party. Where the person employed is guilty, he is the principal, and his employer but an accessory.1 I speak of crimes which are felonies. In misdemeanors there are no accessories, but all the guilty actors, whether present or absent, are principals.2

1 People v. Adams, 3 Denio, 308; 1 Russ. on Cr. 27.

2 4 Denio, 130.

It is not required that a party should be proved to have been actually personally present at the commission of a felony, to warrant his conviction as a principal. It is enough that he be constructively present. By this is meant, that he must be of the party, and do some act in execution of the common design, or be near enough to the scene of operations, to assist in carrying it out, or to aid those who are immediately engaged in it to escape, should necessity require.

As before observed, the jury, under the charge given, were warranted in convicting Wixson as principal, though they had believed, upon the evidence, that he was neither actually nor constructively present, but miles away from the place where the burglary and larceny were committed.

Why the jury convicted Wixson and acquitted Lee, who was tried with him, I can not understand.

The testimony against him was certainly as strong as against Wixson. The fact that he had previously borne a good character did not as against the positive testimony of Lockwood as to his complicity in the burglary and larceny, tend to show that he was innocent. If Lockwood was to be believed, there could be no doubt of Lee's guilt, and his previous good character would then avail him nothing. If the jury put so little reliance on Lockwood's testimony, that proof of Lee's previous good character induced them to reject it wholly as to Lee, how could they convict Wixson on the same testimony?

In my opinion, upon the evidence, Wixson could have been convicted only as an accessory to the felony, or as a receiver of stolen goods. For the error committed in the charge to the jury, the conviction and judgment must be reversed.

PRINCIPAL AND AGENT-RESPONSIBILITY OF ONE FOR ACTS OF OTHERS WITH HIM.

PEOPLE V. KNAPP.

[26 Mich. 112.]

In the Supreme Court of Michigan, 1872.

1. Where parties Combine to Commit an offense and a homicide is committed by a part of them in an attempt to escape, one who did not consent, and was not privy in fact to the homicide, can not be held responsible by reason of the original combination. 2. There can be no Responsibility against one who is not himself engaged in the act of his associates, unless it is within the scope of the combination, to which he was a party and thus authorized as his joint act.

ERROR to Livingston Circuit.

Dwight May, Attorney-General, for the People.

O. Hawkins, for the respondent.

CAMPBELL, J. Knapp was tried separately on an information charging him and others with the murder of Cloetha Perkins, and was convicted of manslaughter. The death of the deceased was caused by a broken leg, the result of accident, or else of her being thrown or pushed from a window by some one or more persons. The verdict of the jury can only rest upon the finding that she was thrown or in some way ejected from the window, and that defendant was responsible. But as there was no testimony which would justify the conclusion that the defendant himself did this act, he must have been convicted on the ground that he was responsible for the conduct of those who did. And the principal questions in the cause bear upon this theory as allowed to go to the jury.

The evidence for the prosecution tended to show that the deceased was, before the accident, in the upper story of a building belonging to defendant and used as a paint shop, in Howell, in company with him and several other young men and that they had sexual intercourse with her; and this was claimed by the prosecution to have been forcible and against her will, and that she had been forcibly taken there for that purpose, and that the whole transaction was essentially one combined grievance. On the part of the defence it was claimed that her death was not the result of any common purpose or offense, and was either accidental or caused by some act in which Knapp had no part.

The verdict of the jury amounts in law to an acquittal of any more serious charge than manslaughter, and, therefore, is a denial of the charge that her death was the result of any other felony. This disposes of some otherwise serious questions and reduces the number of exceptions which would have required attention had there been a verdict of murder.

A plea in abatement was interposed in the second count of the information-which differs from the rest only in charging the homicide to have been done in connection with rape - which if found at all would have been murder. The ground of the plea was that there had been no examination on that charge. The court overruled this plea. But as the jury did not find Knapp guilty of this offense nor of any act not charged in the other counts, to which no objection was interposed, the ruling became immaterial and need not be discussed.

The defendant having been convicted of an offense, which under the verdict, could only be attributed to his complicity with others who actually did the act which led to the death of Miss Perkins, it becomes necessary to consider on what basis any such verdict rests, in order to determine the exact legal position of the case.

The conviction of manslaughter could only have been under certain portions of the charge, permitting the jury to find it in case the injury was caused in an attempt of the various persons assembled in the paint shop to avoid an arrest. The language of the court, repeated nearly in the same terms twice, was as follows: "In this case, if the jury should be satisfied (beyond the doubt that I have spoken of) that these defendants combined for the purpose of inducing this girl to go to that shop for the purpose of prostitution, and that they did induce her to go, and while at the shop all had connection with her, and, in order to avoid arrest or exposure, threw her out of the window, without the intention of killing her, but by it she received injuries which caused her death, it would be manslaughter, because they were engaged in an act against public morals, and unlawful." And the court refused to charge that, if the act was done under these circumstances without the concurrence of Knapp, he should not be convicted. Also refused to charge, that if the parties attempted to escape, and one of them, without the knowledge or consent of the others, helped or threw the deceased out of the window, then none but those actually engaged in the act are liable for the consequences.

The effect of these rulings was practically to hold that parties who have combined in a wrong purpose must be presumed, not only to combine in some way in escaping arrest, but also to be so far bound to each other as to be responsible severally for every act done by any of them during the escape.

It is impossible to maintain such a doctrine. It is undoubtedly possible for parties to combine in order to make an escape effectual, but no such agreement can lawfully be inferred from a combination to do the original wrong. There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for any one to do it. In other words, the principle is quite analogous to that of agency, where the liability is measured by the express or implied authority. And the authorities are quite clear, and reasonable, which deny any liability for acts done in escaping, which were not within any joint purpose or combination.1

This ruling must have been of controlling weight with the jury. There is evidence tending to show that some persons other than Knapp pushed or threw the deceased out of the window; but, if the testimony is all before us, it has very little, if any, bearing upon Knapp's complicity in the act which caused her death. He jumped out first, according to the clear current of evidence, and it is not easy to discover in the

1 Rex v. Collison, 4 C. & P. 565; Reg. v. Howell, 9 C. & P. 487; Rex v. White, R. & R. 99; 1 Bish. Cr. L. secs. 633-645 (5th ed.).