"if A. commands B. to beat C., and B. beats C. so that he dies, A. is accessary, because it may be a probable consequence of his beating."82

If a person commands or counsels another to steal from a certain person or to steal a certain article, and the other steals from some other person, or steals some other thing, the person commanding or counseling is not accessary to the larceny; but it is otherwise if one commands or counsels another to steal generally.83

84

The fact that a homicide is committed by different means from those counseled or commanded does not prevent the person counseling or commanding from being an accessary. But if a man commands or counsels another to kill one person, and the other kills a different person, he is not an accessary to the murder.8

85

189. Homicide or Assault in Order to Escape.

Where several persons combine to commit an offense, and a homicide or assault is committed by one of them in order to effect his escape, the others cannot be held responsible for the homicide or assault unless they consented and were privy in fact thereto;86 or had the common purpose of resisting with ex

went together, and the husband, in carrying out the plan, gave the deceased a fatal blow, the wife giving no intentional assistance. A charge was sustained which justified the jury, under this state of facts, in finding her guilty of murder.

821 Hale, P. C. 617; Reg. v. Caton, 12 Cox, C. C. 624. But one who merely encourages another to tie a person is not an accessary to murder committed by the latter in doing so. People v. Keefer, 65 Cal. 232, 3 Pac. 818.

83 1 Hale, P. C. 617.

841 Hale, P. C. 617; Griffith v. State, 90 Ala. 583, 8 So. 812; Saunder's Case, 2 Plowd. 473, n., Mikell's Cas. 490. Compare Reg. v. Caton, 12 Cox, C. C. 624.

851 Hale, P. C. 617; Saunders' Case, 2 Plowd. 473, n., Mikell's Cas. 490.

86 People v. Knapp, 26 Mich. 112; Mercersmith v. State, 8 Tex. App. 211, Mikell's Cas. 477.

treme violence any person who might attempt to apprehend them.sea There are, however, decisions to the contrary.87 But certainly, if the parties contemplate and intend the doing of everything necessary to effect an escape,-and this may be inferred from the fact that all of them arm themselves, etc.,-all will be responsible for a homicide or assault committed by one, either in effecting his own escape or in rescuing a comrade.88

190. Acts not Criminal on the Part of the Person Committing Them.

When a person aids or abets in the commission of an act by another, or counsels or commands an act, he cannot be punished as a principal in the second degree or accessary before the fact if the other, because of the absence of a criminal intent, or for any other reason, is not guilty of any crime. And it can make no difference that he thought the other was committing a crime, for the law, as we have seen, does not punish a mere criminal intent.89

Cases of Entrapment.-It sometimes happens that when a person is suspected of an intention to commit a crime, a detective, or an employe of the person against whom it is thought the crime will be committed, enters into co-operation with the suspect, and commits the act himself, with a view to prosecuting him as a principal in the second degree. In such a case, if the person actually doing the act is not guilty of a crime, either

Where one uses violence in an attempt to prevent recapture after the other has escaped, the other is not guilty of the violence. Reg. v. Harvey, 1 Cox, C. C. 21.

86a Rex v. Collison, 4 Car. & P. 565.

87 Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396.

88 Ruloff v. People, 45 N. Y. 213, Beale's Cas. 392.

89 Ante, § 116; State v. Douglass, 44 Kan. 618, 26 Pac. 476; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360.

If a homicide is in self-defense one aiding and assisting the slayer is entitled to the defense, though he wrongfully participated. McMahon v. State (Tex. Cr. App.) 81 S. W. 296.

because of the absence of a criminal intent on his part, or because of the consent of his employer,90 or for any other reason, it necessarily follows that the suspect is not guilty, whatever his intent may have been.91

VII. PERSONS WHO MAY BE AIDERS AND ABETTORS OR AC

CESSARIES.

191. In General.-Any person who is capable of committing a crime may be guilty as a principal in the second degree or accessary before or after the fact; and it can make no difference that, by reason of age, sex, condition, or class, he or she

90 Ante, § 161.

91 In State v. Douglass, 44 Kan. 618, 26 Pac. 476, a railroad detective, suspecting the defendant of a purpose to place obstructions on the tracks, pretended to join him in the commission of the offense, and placed the obstructions on the track himself, while the defendant stood by and abetted the act. It was held that the defendant was not guilty, under a statute punishing the willful and felonious placing of an obstruction on a railroad track, though he did not know the detective's character, and believed he was committing the offense.

In State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360, an employe of the owner of a building, suspecting the defendant of a purpose to burglarize it, entered into co-operation with him, with the owner's consent, and opened the window of the building himself, and entered, while the defendant remained on the outside, and received goods handed out to him. It was held that the defendant was not guilty of burglary. As there was no breaking and entry by the employe with felonious intent, no such breaking and entry could be imputed to the defendant.

In a California case, one P. informed the sheriff that the defendant had requested him to enter a house in the nighttime, and steal therefrom a sum of money which he knew to be concealed there, the money to be divided between them. By advice of the sheriff, P. agreed to do so, for the purpose of entrapping the defendant, and accordingly entered the house, secured the money, marked it so that it could be identified, and, after delivering it to the defendant gave a signal, and the sheriff arrested the defendant with the money in his possession. It was held that, inasmuch as P. alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore the defendant could not have been privy to a burglary. People v. Collins, 53 Cal. 185.

C. & M. Crimes-17.

is incompetent to commit the particular crime as principal in the first degree.92

Illustrations.-One of the best illustrations of this rule is in the case of rape. A boy under fourteen years of age (at common law), or a woman, cannot commit rape themselves, but either may be guilty of rape as accessary before the fact or as a principal in the second degree, according to the circumstances, by counseling, aiding, or abetting in the commission of the crime by another.93 In like manner a husband, though he cannot himself commit rape upon his wife, may counsel, aid or assist another to do so, and thus be guilty as principal in the second degree or accessary."

The same is true of other offenses. Thus, Thus, a person may be guilty as a principal in the second degree by aiding and abetting a bankrupt to violate the bankruptcy laws,95 a postmaster to make a false return,96 a public officer to embezzle public money, 96a or an election officer to violate the election law.96b An unmarried man may be guilty of aiding and abetting a married man in the commission of bigamy.97

92 U. S. v. Snyder, 14 Fed. 554.

93 Reg. v. Philips, 8 Car. & P. 736; State v. Jones, 83 N. C. 605, 35 Am. Rep. 586. And see Law v. Com., 75 Va. 885, 40 Am. Rep. 750.

94 Lord Audley's Case, 3 How. St. Tr. 401, 12 Mod. 384, 1 Strange, 633; State v. Comstock, 46 Iowa, 265; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 19 Am. St. Rep. 568, 8 L. R. A. 297. And see Com. v. Fogerty, 8 Gray (Mass.) 489, 491, 69 Am. Dec. 264; Com. v. Murphy, 2 Allen (Mass.) 163, 165.

The principal being acquitted the husband must be also in the absense of any force or intimidation used by him against the principal. State v. Haines, 51 La. Ann. 731, 25 So. 372, Mikell's Cas. 550.

95 U. S. v. Bayer, 4 Dill. 407, Fed. Cas. No. 15,547.

96 U. S. v. Snyder, 14 Fed. 554.

96a State v. Rowe, 104 Iowa, 323, 73 N. W. 833.

Bank officer: Bishop v. State, 118 Ga. 799, 45 S. E. 614.

96b People v. McKane, 143 N. Y. 455, 38 N. E. 950.

97 Boggus v. State, 34 Ga. 275.

A man may be guilty of aiding and abetting a woman in concealing the death of her bastard child, though, under the statute, no one could be guilty as principal in the first degree except the mother.98 And a woman has been held guilty for aiding and abetting a man who falsely personated a sailor who was entitled to an allowance of money."

99

VIII. COUNTERMAND OR WITHDRAWAL.

192. In General.-A person is not guilty of a crime as accessary or principal in the second degree because of counseling or consenting, if he repented and countermanded the other party, or withdrew, to the knowledge of the other, before the crime was committed.1 100

This rule as applied to accessaries before the fact is thus stated by Sir Matthew Hale: "If A. commands B. to kill C., but before the execution thereof A. repents, and countermands B., and yet B. proceeds in the execution thereof, A. is not accessary, for his consent continues not, and he gave timely countermand to B. But if A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessary." 99101

If several prisoners conspire to escape from prison, and to kill any watchman who may oppose them, and in making the attempt one of them kills a watchman, all are guilty of murder. One of them is none the less guilty because he abandons the attempt and returns to his cell before the killing, if he does

98 State v. Sprague, 4 R. I. 257. But see Frey v. Com., 83 Ky. 190. 99 Rex v. Potts, Russ. & R. 353.

1001 Hale, P. C. 617, 618; Rex v. Richardson, 1 Leach, C. C. 387, Beale's Cas. 166; Saunder's Case, 2 Plowd. 473, n., Mikell's Cas. 490; State v. Allen, 47 Conn. 121, Beale's Cas. 394, Mikell's Cas. 483; Pinkard v. State, 30 Ga. 757, Mikell's Cas. 335; People v. Schoedde, 126 Cal. 373, 58 Pac. 859.

101 1 Hale, P. C. 617, 618.