ABORTION.

Sec. 8 (3618). Abortion; destroying child; intent.

If any person shall wilfully administer to any woman, either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy said child, unless the same shall have been necessary to preserve the life of such mother, he shall be guilty of a felony, and imprisoned in the state's prison for not less than one year nor more than ten years, and be fined at the discretion of the court.

Code, s. 975; 1881, c. 351, s. 1.

The indictment need not set out the overt acts used to produce the abortion. Crews, 128-581.

The use of the word "noxious" in the bill is mere surplusage. Crews, 128-581.

INDICTMENT. An indictment charging an attempt to kill by administering a poisonous drug, and an attempt to produce an abortion by the same means, is not demurrable for a misjoinder. Slagle, 82-653.

It is a common law misdemeanor to administer a noxious drug with intent to produce an abortion. Slagle, 82-653.

It is not necessary to allege or prove that defendant procured the drug; the acts made indictable is advising and procuring the woman to take the drug. Crews, 128-582.

KNOWLEDGE OF CHARACTER OF DRUG NOT NECESSARY.-Advising and procuring a woman to take turpentine with intent thereby to procure an abortion is indictable, and it makes no difference whether such drug would have such effect or not, that is it makes no difference whether turpentine is a noxious drug or not. Crews, 128-582.

Sec. 9 (3619). Abortion; destroying woman; intent.

If any person shall administer to any pregnant woman, or prescribe for any such woman, or advise and procure such woman to take any medicine, drug or any thing whatsoever, with intent thereby to procure the miscarriage of any such woman, or to injure or destroy such woman, or shall use any instrument or application. for any of the above purposes, he shall be guilty of a felony, and imprisoned in the jail or state's prison for not less than one year nor more than five years, and be fined, at the discretion of the

court.

Code, s. 976; 1881, c. 351, s. 2.

ABSENCE OF DEFENDANT DURING TRIAL.

On a trial for a felony no order that may prejudice the defendant can be made in his absence. Alman, 64-364; Blackwelder, 61 (Phil.), 38; Bray, 67-283.

It is the right of a defendant to be present when anything is said or done that may prove prejudicial to his interests; but where no instructions were given to the jury in the absence of the defendant, he can not complain that the court, in his absence, asked the jury if they desired any further instructions. Coley, 114—879.

On indictment for burning a granary and stable, counsel for the prosecution, on the reassembling of the court after taking a recess for dinner, addressed the jury twenty or thirty minutes, and was immediately followed by one of the defendants' counsel, who had spoken some ten or fifteen minutes, when it was suggested that defendants who were in custody had not been brought into court. The argument was immediately suspended until defendants were brought in. Defendants' counsel were present at all stages of the trial: Held, that the absence of defendants under such circumstances did not prevent the court from proceeding to judgment. Paylor, 89-539.

On indictment for burning a mill, the jury delivered their verdict to the judge in his room late at night, in the presence and with the assent of defendant's counsel, but in the absence of defendant, and next day defendant moved in court for his discharge, on the ground that the verdict as given was not valid and the jury had separated: Held, that he was not entitled to his discharge, but that there was a mistrial, and that the verdict must be set aside and venire de novo awarded. Jenkins, 84-812.

VERDICT RENDERED TO CLERK IN THE ABSENCE OF DEFENDANT.-Where the verdict, on indictment for larceny, is rendered to the clerk during the recess of the court, in the absence of the defendant and without his consent, and without any instructions from the court, judgment may be arrested, or the court even, ex mero motu, may set the verdict aside. Epps, 76-55.

VERDICT RENDERED IN ABSENCE OF DEFENDANT.-A verdict of guilty rendered, in the absence of defendant and his counsel, to a judge at his chambers, and entered on the record next day in the absence of the jury and defendant, can not be sustained. Bray, 67-283.

PRESENCE OF DEFENDANT IN COURT DURING TRIAL.-On indictment for larceny, defendant was present during the trial until the jury were returning with their verdict when he fled, and, on being called, failed to answer. One of his counsel was present when the verdict was rendered, and made no objection to the taking of the verdict in defendant's absence: Held, that in indictments for felonies less than capital defendant may waive his right to be present during the progress of the trial, and that the verdict thus rendered was not void. Smith, C. J., dissenting. Kelly, 97–404.

The right of a prisoner charged with a capital felony to be present throughout the progress of the trial can not be waived even by himself, and it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial. Jenkins, 84-812.

Counsel for a defendant charged only with a misdemeanor can not waive his presence during the trial. Jenkins, 84-812.

PRESENCE OF PRISONER IN SUPREME COURT.-It is not necessary that a prisoner should be present in the supreme court when his case is argued and determined there, and he is not denied his constitutional right to confront his accusers and the witnesses against him because he was not so present, since no "accusers" or "witnesses" appear in the supreme court against him. Overton, 77-485.

ACCESSORIES.

Sec. 10 (3287). Accessories to felonies before the fact; when, where, and how tried and punished.

If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring, or commanding, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished; and the offense of the person so counseling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offense had been committed at the same place as the principal felony or where the principal felony is triable, although such offense may have been committed at any place within or without the limits of the state; and in case the principal felony shall have been committed within the body of any county, and the offense of counseling, procuring or commanding shall have been committed within the body of any other county, the last-mentioned offense may be inquired of, tried, determined, and punished in either of such counties: Provided, that no person who shall be once duly tried for any such offense, whether as an accessory before the fact, or as a substantive felony, shall be liable to be again indicted or tried for the same offense.

Code, s. 977; R. C., c. 34, s. 53; 1797, c. 485, s. 1; 1852, c. 58.

NO ACCESSORIES BEFORE THE FACT IN LARCENY.-There are no accessories before the fact in larceny, for not only those who aid and abet, but all who advise, counsel or procure the act to be done, are principals. If an indictment charges that A committed the theft, and B was present aiding and abetting, and the proof should be that B committed the theft and A was present aiding and abetting, there would be no variance, and a conviction would be sustained. Fox, 94-928.

There are no accessories before the fact in larceny. The distinction between grand and petit larceny has been abolished, and all felonious stealing is now reduced to the grade of petit larceny. Stroud, 95-626.

EVIDENCE.-Under an indictment as accessory before the fact it is competent for counsel to ask the witness, "what seemed to be and what was the relation between the principal and the defendant?" such being a matter of common observation, and not calling for expert testimony. Turner, 143-641.

CONFESSION OF PRINCIPAL.-On indictment of accessories before the fact, the principal having testified to the facts of the crime, evidence that the principal confessed the crime is inadmissible as substantive evidence against him, but is only corroborative evidence as to the guilt of the accessories. McCall, 131-798.

MEANING OF THE WORD "COMMAND."-The meaning of the word "command," as applied to principal and accessory is where a person having control over another, as a master over his servant, orders a thing to be done. Mann, 2 (1 Hay.), 4 (7).

NO ACCESSORIES IN MISDEMEANORS.-There are no accessories in minor offenses, but whatever will make a man an accessory before the fact in felony will make him a principal in misdemeanor. Cheek, 35 (13 Ired.),

114.

That which in felony makes a person an accessory before the fact, in petit larceny makes him a principal. Barden, 12 (1 Dev.), 518.

Whoever procures a felony to be done, although it be by the instigation of a third person, is an accessory before the fact, and that which in felony makes a person an accessory before the fact, in petit larceny and misdemeanors makes him a principal. Barden, 12 (1 Dev.), 518.

PRINCIPAL MUST BE PRESENT AT THE TAKING IN LARCENY.-In an indictment for larceny one can not be convicted as a principal unless he were actually or constructively present at the taking and carrying away of the goods. His previous assent to or procuring of the caption and asportation will not make him a principal, nor will his subsequent reception of the thing stolen, or his aiding in concealing or disposing of it, have that effect. (This was an indictment at common law for the larceny of a slave.) Hardin, 19 (2 D. & B.), 407.

ACCESSORIES BEFORE THE FACT CAN NOT BE CONVICTED AS PRINCIPALS.Two persons jointly indicted with others for burning a barn containing grain, can not be convicted as principals where the evidence shows that they were not present but were accessories before the fact. Dewer, 65-572.

MURDER COMMITTED TO CONCEAL ROBBERY.-If a prisoner procures C to commit a robbery, and C kills the deceased to conceal the robbery, the principal is guilty as accessory before the fact to the murder. Davis, 87-514.

INDICTMENT MUST AVER GUILT OF THE PRINCIPAL.-An indictment for being an accessory before the fact must aver the guilt of the principal. Davis, 87-514.

EVIDENCE OF PRINCIPAL'S GUILT.-The record of the conviction of the principal felon is admissible on the trial of the accessory, and is conclusive evidence of the conviction of the principal and prima facie evidence of his guilt. Chitten, 13 (2 Dev.), 49.

Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory, unless judgment has been first rendered against the principal. Duncan, 28 (6 Ired.), 98.

If one person lay poison for the purpose of killing another, and a third person take it and death result, it is murder, both in the principal and accessories before the fact. Fulkerson, 61 (Phil.), 233.

ACCESSORIES THE ACQUITTAL OF THE PRINCIPAL FELON AN ACQUITTAL OF AN ACCESSORY.-Section 8 (The Code, section 977) dispenses with the necessity of the conviction of the principal felon before an accessory before the fact can be tried and punished, but the common law rule that an acquittal of the principal is an acquittal of the accessory is still in force. Jones, 101-719.

ACCESSORY MAY PLEAD ACQUITTAL OF PRINCIPAL.-Although under section 8 (Code, section 977) it is not necessary that the principal should be convicted before an accessory can be tried and punished, still the common law rule that an acquittal of the principal is an acquittal of the accessory is yet in force, and an accessory, in order to sustain a plea of the acquittal of his principal, must show that the principal was acquitted of the same offense with which the accessory is charged. Therefore, where an indictment for arson was changed "to charge an attempt to burn a dwelling-house," and the principal defendant pleaded guilty of "an attempt to burn a store," it was held that the attempted change of the bill and the plea of guilty were nullities, and that the accessory could not sustain a plea of former acquittal of the principal by proof of such proceedings. Smith, C. J., dissenting. Jones, 101-719.

CHARGING AS PRINCIPAL.-Under an indictment for an assault with intent to kill, charging defendant as principal, he can not be convicted as accessory. Green, 119-899.

PRINCIPAL IN SECOND DEGREE.-A principal in the second degree is not an accessory but a co-principal. Whitt, 113-716.

EVIDENCE OF AIDING.-There was evidence that defendant jumped out of the buggy simultaneously with his companion and ran with him towards the deceased, that he either heard or made the remark, "We will whip you in a minute," and that he must have seen his companion draw his knife, made no effort to stop the murderous assault, but, on the contrary, threatened deceased's companion, and said: "If you get off your horse I will eat you up": Held, that the evidence was sufficient to go to the jury that defendant was present for the purpose of aiding and abetting his companion and is consequently a co-principal. Jarrell, 141-722.

Sec. 11 (3288). Accessories punished, principal not tried.

In order that accessories may be convicted and punished in all cases, if any principal offender shall be in anywise convicted, it shall be lawful to proceed against an accessory, either before or after the fact, in the same manner as if the principal felon shall die or be pardoned or otherwise delivered before or after sentence or punishment, and every such accessory shall suffer the same punishment, if he be in anywise convicted, as he should have suffered if the principal had been sentenced or punished.

Code, s. 979; R. C., c. 34, s. 55.

CO-PRINCIPAL.-A principal in the second degree is not an accessory, but a co-principal. Jarrell, 141-722.

The rule that an accessory can not be tried and convicted before the principal has no application as between two principals in first and second degrees. Jarrell, 141-722.

Sec. 12 (3289). Accessories to felonies after the fact; when, where, and how tried and punished.

If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any statute made, or to be made, such person shall be guilty of a felony, and may be indicted and convicted together with the principal felon, or after the conviction of the principal felon,