cation with one who is suspected of criminal acts, and apparently aids or abets him in the commission of an act, is not a principal in the second degree, if he did so, not with a criminal intent, but for the purpose of detecting the other party, and disclosing his guilt for the benefit of the public. And it can make no difference in such a case whether he was a public officer or merely a private person.

49

Specific Intent. When a specific intent is necessary to constitute a particular crime, one cannot be a principal in the second degree to that particular offense unless he entertains such an intent, or knows that the party actually doing the act entertains such intent.50

IV. ACCESSARIES BEFORE THE FACT.

176. Definition.-An accessary before the fact is one who procures, commands, or counsels the commission of a felony by another, but who is not present, either actually or constructively, when the felony is committed.51 To constitute one an accessary before the fact

49 State v. McKean, 36 Iowa, 343, 14 Am. Rep. 530; Wright v. State, 7 Tex. App. 545, 32 Am. Rep. 599; People v. Farrell, 30 Cal. 316; Price v. People, 109 Ill. 109; Com. v. Downing, 4 Gray (Mass.) 29; People v. Noelke, 29 Hun (N. Y.) 461. And see Rex v. Despard, 28 How. St. Tr. 346.

But see Slaughter v. State, 113 Ga. 284, 38 S. E. 854, 84 Am. St. Rep. 242, where a private detective was convicted of larceny in instigating prosecutor's servant to steal, though he did it for the purpose of de tection.

50 In order to convict a person of murder in the first degree, as an aider and abetter, it must be shown that he knew or believed that the person who committed the homicide intended to kill, or that he himself acted with such intent. Savage v. State, 18 Fla. 909, Mikell's Cas. 475. And see, as to assault with intent to kill, State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; Reg. v. Cruse, 8 Car. & P. 541. Mayhem: State v. Absence, 4 Port. (Ala.) 397; State v. Taylor, 70 Vt. 1, 39 Atl. 447, 42 L. R. A. 673, 67 Am. St. Rep. 648.

See, also, Rountree v. State, 10 Tex. App. 110.

511 Hale, P. C. 615, 616, Mikell's Cas. 487; 4 Bl. Comm. 36; Fost. C. L. 125; 2 Hawk. P. C. c. 29, § 16; Rex v. Kelly, Russ. & R. 421, Mik

1. There must be a guilty principal in the first degree.
2. The accessary must be neither actually nor constructive-
ly present when the offense is committed.

3. There must be some participation by way of procure-
ment, command, or counsel. Mere knowledge that
the offense is to be committed, or even mental ap-
proval, is not enough.

177. Guilty Principal in the First Degree.

The person actually committing the deed must be a guilty party, and not an innocent agent, for, as we have seen, one who procures the commission of a felony through the instrumentality of an innocent agent is himself the principal in the first degree.52 And of course a person who commands or counsels another to commit a felony cannot be an accessary, if the other does not actually commit the felony.5

53

178. Absence When the Offense is Committed.

To be an accessary before the fact a party must be absent at the time the deed is done.54 As was explained in a previous section, actual or constructive presence makes one a principal in the second degree, as distinguished from an accessary. 55

179. The Procurement, Command, or Counsel.

To render one an accessary he must have procured, commanded, or counseled the commission of the act. "And there

ell's Cas. 488; People v. Lyon, 99 N. Y. 210, 1 N. E. 673; Able v. Com., 5 Bush (Ky.) 698; Keithler v. State, 10 Smedes & M. (Miss.) 192. 52 Ante, § 168.

53 See Ogden v. State, 12 Wis. 532, 78 Am. Dec. 754.

541 Hale, P. C. 616; 4 Bl. Comm. 36; Reg. v. Brown, 14 Cox, C. C. 144, Beale's Cas. 389; Reg. v. Tuckwell, Car. & M. 215; Norton v. People, 8 Cow. (N. Y.) 137; Williams v. State, 47 Ind. 568.

55 Ante, § 172, and cases there cited.

fore," says Sir Matthew Hale, "words that sound in bare permission make not an accessary; as, if A. says he will kill J. S., and B. says, 'You may do your pleasure for me,' this makes not B. accessary."56 The procurement, however, need not be direct. It is sufficient if it be through the agency of another; and it may be by approbation or consent to an expressed felonious design.57

Approbation and consent are something more than "words sounding in bare permission," of which Hale speaks in the above quotation. Bare nondisclosure or concealment of the intention of another to commit a felony is not enough.5

180. Criminal Intent.

58

To render one guilty of a crime as an accessary he must have a criminal intent. Thus, one who joins a conspiracy to commit a robbery merely for the purpose of exposing it, and honestly carries out the plan, is not an accessary before the fact to the robbery when committed by the others.59

V. ACCESSARIES AFTER THE FACT.

181. Definition.-An accessary after the fact is one who receives, relieves, comforts, or assists another personally, with

561 Hale, P. C. 616.

57 Fost. C. L. 127; 2 Hawk. P. C. c. 29, § 11; Rex v. Somerset, 2 How. St. Tr. 966, cited in McDaniel's Case, 19 How. St. Tr. 804; Rex v. Cooper, 5 Car. & P. 535, Mikell's Cas. 488; Norton v. People, 8 Cow. (N. Y.) 137.

A detective who in order to get a reward induces, through an agent, an employe of a merchant to steal from his employer, is guilty of larceny. Slaughter v. State, 113 Ga. 284, 38 S. E. 854, 84 Am. St. Rep. 242.

58 2 Hawk. P. C. c. 29, § 23; Rucker v. State, 7 Tex. App. 549. 59 Com. v. Hollister, 157 Pa. 13, 27 Atl. 386.

If a specific intent is necessary to constitute the particular offense, a person, to be an accessary, must entertain, or know that the principal entertains, that specific intent. See State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54.

60

knowledge that he has committed a felony. To constitute one an accessary after the fact

1. A felony must have been committed, and it must have

been complete at the time of the relief or assistance. 2. The accused must know that the felony has been committed by the person received, relieved, or assisted. 3. The assistance must be rendered to the felon personally. 182. The Commission of the Felony.

To render one an accessary after the fact to a felony, it is clear that the person relieved or assisted must have committed a felony. It is also necessary that the felony shall have been completed at the time the relief or assistance was given. Thus, a person cannot be convicted as an accessary after the fact to a murder because he assisted the murderer to escape, where the assistance was rendered after the mortal wound was given, but before death ensued, as a murder is not complete until the death results. In such a case, however, there may be a conviction as accessary after the fact to the offense of assault with intent to murder, if this is made a felony by statute."

A felony must have been actually committed by the person. received or assisted. It is not enough to show that he was accused of a felony."

63

183. Knowledge of Commission of the Felony.

It is also necessary to show that the accused knew that the felony had been committed, and that it had been committed by the person received or assisted.64

60 4 Bl. Comm. 37; 1 Hale, P. C. 618, Mikell's Cas. 487; Wren v. Com., 26 Grat. (Va.) 952; Loyd v. State, 42 Ga. 221; Tully v. Com., 11 Bush (Ky.) 154.

61 4 Bl. Comm. 38; 1 Hale, P. C. 622; Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95. See, also, Wren v. Com., 26 Grat. (Va.) 952.

62 Harrel v. State, supra.

63 Poston v. State, 12 Tex. App. 408.

64 2 Hawk. P. C. c. 29, § 32; State v. Davis, 14 R. I. 281, Mikell's Cas.

"There can be no accessary in receipt of a felon, unless he know him to have committed a felony."65

184. The Relief or Assistance.

To render one an accessary after the fact, some relief or assistance must be given the felon. Mere failure to disclose the commission of a felony or to apprehend the felon, or mere approval of the felony, is not enough.66

It is also necessary that the relief or assistance shall be given to the felon personally. For this reason receiving stolen goods from the thief, or aiding in the concealment of stolen goods, knowing that they have been stolen, does not render one an accessary after the fact to the larceny, though it is in itself an offense, for this is merely dealing with the goods, and not assisting the thief personally.67

Generally speaking, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the person assisting an accessary, as furnishing him with a horse to escape his pursuers, money or food to support him, a house or other shelter to conceal him, or open force or violence to rescue or protect him."

68

To convey instruments to a felon to enable him to break jail,

496; Wren v. Com., 26 Grat. (Va.) 952; Loyd v. State, 42 Ga. 221; Robbins v. State, 33 Tex. Cr. R. 573, 28 S. W. 473.

65 1 Hale, P. C. 622. See Tully v. Com., 13 Bush (Ky.) 142.

661 Hale, P. C. 618; Wren v. Com., 26 Grat. (Va.) 952; Carroll v. State, 45 Ark. 539; State v. Hann, 40 N. J. Law, 228; Cooper v. Johnson, 81 Mo. 483.

67 4 Bl. Comm. 38; 1 Hale, P. C. 619, 620; Loyd v. State, 42 Ga. 221; Wren v. Com., 26 Grat. (Va.) 952; post, § 380. He is not an accessary because "he receives the goods only, and not the felon." 4 Bl. Comm. 38. See, also, Reg. v. Chapple, 9 Car. & P. 355.

But to assist the robber by procuring change for a bank note, knowing it to be a part of the proceeds of the robbery, is punishable. Reg. v. Butterfield, 1 Cox, C. C. 39, Mikell's Cas. 499.

68 4 Bl. Comm. 37; 2 Hawk. P. C. c. 29, §§ 26, 27, 34, 35; 1 Hale, P. C. 619; Wren v. Com., 26 Grat. (Va.) 952; Rex v. Lee, 6 Car. & P. 536.