or to bribe the jailer to let him escape, will make one an accessary.69 69 "But to relieve a felon in jail with clothes or other necessaries is no offense; for the crime imputable to this species of accessary is the hindrance of public justice, by assisting the felon to escape.' 9970

Compounding a felony,-agreeing to conceal a felony, or not to prosecute therefor, or to withhold evidence,—without rendering any assistance to the felon, as explained above, does not render one an accessary. 71

The act of relief may be culpable, though done through an agent or servant.71a

185. Persons Occupying Particular Relations.

"So strict is the law," says Blackstone, "that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who may have any of them committed a felony, the receivers become accessaries."72 But a feme covert cannot become an accessary by the receipt and concealment of her husband, "for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord."73

69 4 Bl. Comm. 38; 1 Hale, P. C. 621; Wren v. Com., 26 Grat. (Va.) 952.

70 4 Bl. Comm. 38. And see 1 Hale, P. C. 620.

71 Wren v. Com., 26 Grat. (Va.) 952; Robert's Case, 3 Coke, Inst. 138, Mikell's Cas. 495.

71a Rex v. Jarvis, 2 Moody & R. 40, Mikell's Cas. 499, n.

72 4 Bl. Comm. 38; 3 Inst. 108; 2 Hawk. P. C. 320; 1 Hale, P. C. 621; People v. Dunn, 7 N. Y. Cr. R. 187. In several states this has been changed by statute.

784 Bl. Comm. 39; 1 Hale, P. C. 621.

VI. ACTS FOR WHICH ACCOMPLICES ARE RESPONSIBLE.

186. In General.-As a general rule, no one can be punished as an aider or abettor, or as an accessary before the fact, for a crime, to the commission of which he has never expressly or impliedly given his consent.

But if a person joins in an attempt to commit one crime, by aiding, abetting, counseling, or commanding its commission, he is to be considered as assenting to any crime which is committed by his associates in the attempt to execute the common purpose, and which is a natural or probable consequence of such attempt.

To render one guilty of a crime as a principal in the second degree or accessary before the fact, the act must constitute a crime on the part of the person committing it. There must be a guilty principal in the first degree.

187. Acts for Which Accomplice is not Responsible.

As stated above, it may be laid down as an undoubted general proposition that no man can be properly convicted of a crime as principal in the second degree or accessary before the fact if he never expressly or impliedly consented to the commission of the crime.74

It is not always enough to show that he counseled, commanded, or consented to some other crime. If several persons combine or conspire to commit one crime, and one of them goes outside of the common purpose and commits another crime, which

74 Per Mulkey, J., in Lamb v. People, 96 Ill. 73, 82. And see State v. Maloy, 44 Iowa, 104; Rex v. Plummer, J. Kelyng, 109; White v. l'eople, 139 Ill. 143, 28 N. E. 1083, Mikell's Cas. 480; Leslie v. State, 42 Tex. Cr. R. 65, 57 S. W. 659.

Persons who attend one on a lawful expedition, during which he alone commits a crime are liable therefor only on proof of a conspiracy, or of their intention to aid him in any unlawful act he might do. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392.

is not a natural or probable consequence of carrying out the common purpose, the others are not responsible.75

"If A. command or counsel B. to commit felony of one kind, and B. commits a felony of another kind, A. is not accessary; as, if A. command B. to steal a plate, and B. commits burglary to steal a plate, A. is accessary to the theft, but not to the burglary."76

75 State v. Lucas, 55 Iowa, 321, 7 N. W. 583, Beale's Cas. 396; Lamb v. People, 96 Ill. 73; People v. Knapp, 26 Mich. 112; Jordan v. State, 81 Ala. 20, 1 So. 577; Fraunk v. State, 27 Ala. 37; Mercersmith v. State, 8 Tex. App. 211, Mikell's Cas. 477; Watts v. State, 5 W. Va. 532; People v. Leith, 52 Cal. 251; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; Alston v. State, 109 Ala. 51, 20 So. 81; Woolweaver v. State, 50 Ohio St. 277, 34 N. E. 352, 40 Am. St. Rep. 667; State v. May, 142 Mo. 135, 43 S. W. 637; Powers v. Com., 110 Ky. 386, 61 S. W. 735, 63 S. W. 976, 53 L. R. A. 245.

Where two brothers were jointly indicted and tried for murder, and it was shown that one fired the fatal shot, while the other cut the deceased with a knife, while running by him towards the one who had the pistol, it was held that the one who cut with the knife could not be convicted as aiding and abetting his brother, unless there was preconcert of purpose between them, or unless he aided and abetted his brother, having knowledge of the other's purpose. Jordan v. State, 81 Ala. 20, 1 So. 577.

"The rule of criminal responsibility, in cases of conspiracy or combination, seems to be that each is responsible for everything done by his confederates which follows incidentally in the execution of the common design, as one of the probable and natural consequences, even though it was not intended as a part of the original design or common plan. In other words, the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates, outside of, or foreign to, the common design. Nor must it have been committed by one of the confederates after the explosion of the plot, or the abandonment of the common design, or from causes having no connection with the common object of the conspirators." Williams v. State, 81 Ala. 1, 1 So. 179. See, also, McLeroy v. State, 120 Ala. 274, 25 So. 247.

761 Hale, P. C. 616, 617. "If A. commands B. to take C., and B. takes C., and robs him, A. is not accessary to the robbery." 1 Hale, P. C. 617.

Where poachers set upon a game keeper and beat him until he was

If several combine to steal from a safe in a building, and one of them, in the absence of the others, robs a watchman in the building, the others are not accessaries to the robbery."

188. Acts for Which Accomplice is Responsible.

It is not always necessary, however, to render one guilty of a crime as a principal in the second degree or accessary before the fact, that he shall have contemplated or expressly assented to the commission of the particular crime. The general rule is that, if several persons combine or conspire to commit a crime, or if persons command or counsel a crime, or aid and abet in an attempt to commit a crime, or if several engage in an unlawful enterprise, each is responsible as principal in the second degree or accessary before the fact, according to the circumstances, for all acts committed by the others in the execution of the common purpose, if such acts are a natural or probable consequence of the unlawful combination or undertaking, 78

senseless and afterwards one of them robbed him, the others were not guilty of the robbery. Rex v. Hawkins, 3 Car. & P. 392. See Reg. v. Barnett, 3 Cox, C. C. 432.

77 State v. Lucas, 55 Iowa, 321, 7 N. W. 583, Beale's Cas. 396.

78 Fost. C. L. 370; 1 Hale, P. C. 441; Ashton's Case, 12 Mod. 256, Beale's Cas. 392; Ruloff v. People, 45 N. Y. 213, Beale's Cas. 392; Reg. v. Caton, 12 Cox, C. C. 624; Saunder's Case, 2 Plowd. 473, Mikell's Cas. 490; State v. Allen, 47 Conn. 121, Beale's Cas. 394, Mikell's Cas. 483; Peden v. State, 61 Miss. 268; Williams v. State, 81 Ala. 1, 1 So. 179; Gibson v. State, 89 Ala. 121, 8 So. 98; Brennan v. People, 15 Ill. 511; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Spies v. People, 122 III. 1, 12 N. E. 865, 17 N. E. 898 (The Anarchist Case); Miller v. State, 25 Wis. 384; State v. Shelledy, 8 Iowa, 478; Miller v. State, 15 Tex. App. 125; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233; Ferguson v. State, 32 Ga. 658; State v. Johnson, 7 Or. 210; Weston v. Com., 111 Pa. 251, 2 Atl. 191; State v. Cannon, 49 S. C. 550, 27 S. E. 526; U. S. v. Ross, 1 Gall. 624, Fed. Cas. No. 16,196; U. S. v. Sweeney, 95 Fed. 434.

"The general rule is familiar, that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates, committed

Thus, it is said by Foster that "if A. adviseth B. to rob C., and he doth rob him, and in doing so, either upon resistance made or to conceal the fact, or upon any other motive operating at the time of the robbery, he killed him, A. is accessary to the murder."79

On the same principle, if several persons combine to commit a burglary, and one of them murders the owner of the house in order to accomplish the common purpose, all are guilty of murder.s 80 The same is true where a homicide is committed by one of several persons who combine to beat another.81 And

in furtherance or in prosecution of the common design for which they combine." Williams v. State, 81 Ala. 1, 1 So. 179.

Where respondent interfered in a fight between two others, knocking one of them down whereupon the other immediately kicked him so that he died, respondent was responsible for the death (People v. Carter, 96 Mich. 583, 56 N. W. 79); but where respondent and another were fighting and respondent knocked his adversary down whereupon a third person kicked him to death, respondent was not responsible. People v. Elder, 100 Mich. 515, 59 N. W. 237.

79 Fost. C. L. 370; Saunders' Case, 2 Plowd. 473, Mikell's Cas. 490. And see Miller v. State, 25 Wis. 384; State v. Davis, 87 N. C. 514; State v. Barrett, 40 Minn. 77, 41 N. W. 463; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808.

80 Mitchell v. Com., 33 Grat. (Va.) 845. And see Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Ruloff v. People, 45 N. Y. 213, Beale's Cas. 392.

81 State v. Maloy, 44 Iowa, 104; Saunder's Case, 2 Plowd. 473, Mikell's Cas. 490.

Where five or six persons conspired together to invade a man's household, and went there armed with deadly weapons for the purpose of attacking and beating him, and, in furtherance of this common design, one of them got into a difficulty with him, and killed him, the others being present, or near at hand, it was held that all were guilty of murder, although they did not intend to kill. Williams v. State, 81 Ala. 1, 1 So. 179. See, also, Peden v. State, 61 Miss. 268. In Miller v. State, 25 Wis. 384, the wife of the defendant, without fear or compulsion from him, agreed with him to go to the store of the deceased, and to rob it, the husband telling her, and she believing, that he did not intend to kill the deceased, but only to knock him down, so as to stun him, in order to consummate the robbery. They