(b) Statutory Offenses. The distinction between principals and accessaries applies to statutory felonies, as well as to felonies at common law, unless the statute shows a contrary intent.3 And it applies to an offense which was not a felony at common law, but which has been made a felony by statute, as, in some jurisdictions, forgery, obtaining property by false pretenses, and assaults with intent to kill, to rob, to rape, etc. It was said in a Kentucky case that, as a general rule, where a statute creates a felony and prescribes a particular punishment therefor, or where a statute provides a punishment for a common-law felony by name, those who were

669; Williams v. State, 12 Smedes & M. (Miss.) 58; Com. v. Gannett, 1 Allen (Mass.) 7, 79 Am. Dec. 693; People v. Erwin, 4 Denio (N. Y.) 129; Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Howlett v. State, 5 Yerg. (Tenn.) 144; State v. Smith, 2 Yerg. 273; Wagner v. State, 43 Neb. 1; Sanders v. State, 18 Ark. 198.

31 Hale, P. C. 613, 614; Reg. v. Tracy, 6 Mod. 30; Stamper v. Com., 7 Bush. (Ky.) 612; Com. v. Carter, 94 Ky. 527; Bland v. Com., 10 Bush. (Ky.) 622; Meister v. People, 31 Mich. 99; Nichols v. State, 35 Wis. 308; McGowan v. State, 9 Yerg. (Tenn.) 184.

4 Nichols v. State, 35 Wis. 308.

present aiding and abetting in the commission of the crime are held to be included by the statute, although not mentioned. But where the punishment is imposed by the statute upon the person alone who actually commits the acts constituting the offense, and not in general terms upon those who are guilty of the offense, according to common-law rules, mere aiders and abettors will not be deemed to be within the act.5 But this case has been overruled, and the rule established that, unless it is plain, from the nature of an offense made a felony by statute, that the provisions of the statute were intended to affect only the party actually committing the offense, aiders. and abettors are punishable.

(c) Petit Larceny.-In England there were no accessaries, either before or after the fact, in petit larceny,-i. e. larceny of property of the value of twelve pence or less,7but all persons concerned therein, if guilty at all, were guilty as principals. And this was

5 Stamper v. Com., 7 Bush. (Ky.) 612. See, also, Bland v. Com., 10 Bush. (Ky.) 622; Frey v. Com., 83 Ky. 190.

82 Inst. 183; 4 Bl. Comm. 36; 1 Hale, P. C,

true notwithstanding petit larceny seems to have been regarded as a felony. The same is true in this country where larceny is divided into grand and petit larceny, and the latter is a misdemeanor only,10 or where all larceny is reduced to the grade of petit larceny.11

(d) Homicide. It is clear that there may be accessaries before the fact in murder at common law, in murder in the first degree under the statutes, and in murder in the second degree.12 But there cannot be accessaries before the fact to voluntary manslaughter, for "it is committed suddenly, without reflection, in heat of passion and without malice, express or implied, and repels the supposition that the homicide was the result of premeditation, con

530; 1 Hawk. P. C. c. 29, §§ 1, 24.

91 Hale, P. C. 530.

State v.

10 Ward v. People, 6 Hill (N. Y.) 144; Gaston, 73 N. C. 93, 21 Am. Rep. 459. See Shay v. People, 22 N. Y. 317.

11 In North Carolina, all larceny has been reduced by statute to the degree of petit larceny, and in that state there can be no accessaries in larceny, but all concerned are guilty as principals. State v. Gaston, 73 N. C. 93, 21 Am. Rep. 459; State v. Stroud, 95 N. C. 626.

12 Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; State v. Maloy, 44 Iowa, 104,

cert, or aid, all of which would be evidences of malice."13 There may be principals in the second degree and accessaries before the fact to involuntary manslaughter. Thus, if two men drive separate vehicles at a furious and dangerous speed along the highway, each inciting and abetting the other, and one of them drives over and kills a person, the one thus causing the death is guilty of manslaughter as principal in the first degree, and the other is guilty as principal in the second degree. And the same would be true of two persons in the same vehicle, one driving and the other inciting and abetting him.14 If one should incite another to so drive, and should be absent when the latter runs over and kills a person, he would be guilty of manslaughter as accessary before the fact.15

13 Jones v. State, 13 Tex. 168, 62 Am. Dec. 550. And see 4 Bl. Comm. 36; 1 Hale, P. C. 616. 14 Reg. v. Swindall, 2 Car. & K. 230, Beale's Cas. 167.

Where several persons went out together to shoot at a mark, and selected such a position that their shooting was negligent, and one of them accidentally killed a man, all were held guilty of manslaughter. Reg. v. Salmon, 14 Cox, C. C. 494, Beale's Cas. 189.

15 See Reg. v. Gaylor, Dears & B. C. C. 288.

165. Prosecution and Punishment.

(a) Principals in the Second Degree.The law recognizes no difference, as respects the punishment, between the offense of principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is so far immaterial that, on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abet✈ ting, and vice versa.1 And at common law a principal in the second degree may be indicted and convicted before trial of the principal in the first degree, and even after he has been acquitted, though the commission of the act by the principal in the first degree must be proved in order to convict one as aiding and abetting.18

17

16

16 1 Archb. Crim. Pr. & Pl. 13; Fost. 350, 351; 1 Hale, P. C. 437; Com. v. Chapman, 11 Cush. (Mass.) 422; Doan v. State, 26 Ind. 495; Williams v. State, 47 Ind. 568; State v. Squaires, 2 Nev. 226.

17 Fost. C. L. 350, 351; 1 Hale, P. C. 437; People v. Bearss, 10 Cal. 68; People v. Newberry, 20 Cal. 439; State v. Fley, 2 Brev. (S. C.) 338, 4 Am.