ARTICLE 38. COMMON PURPOSE. 1 When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose. If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless they actually instigate or assist in its commission. Illustrations. (1.) 2 A constable and his assistants go to arrest A at a house in which are many persons. B, C, D, and others come from the house, drive the constable and his assistants off, and one of the assistants is killed, either by B, C, D, or one of their party. Each of the party is equally responsible for the blow, whether he actually struck it or not. 3 (2.) Three soldiers go to rob an orchard. Two get into a fruit tree. The third stands at the door with a drawn sword, and stabs the owner, who tries to arrest him. The men in the tree are neither principals nor accessories, unless all three came with a common resolution to overcome all opposition. 4 (3.) Smugglers fight with revenue officers. In the fight a smuggler fires a gun which kills another smuggler. The gun was not fired at any of the revenue officers. The man who fired the gun is responsible for the act, but not his companions. (4.) Two parties of persons fight in the street about the removal of goods to avoid a distress. One of the persons engaged kills a looker-on, totally unconcerned in the affray. The other persons present are not responsible for his crime. (5.) Two persons go out to commit theft. One, unknown to the other, put a pistol in his pocket, and shoots a man with it. The other person is not responsible for the shot. 1 See cases referred to in the Illustrations. See also Fost. 350-2; 1 Russ. Cr. 65-6, 737-8, 742-6. 2 Sissinghurst House Case, 1st Resolution; 1 Hale, P. C. 462. 3 Plummer's Case, Foster, 353. More fully reported in Kelynge, 155 (edition of 1873). Lord Holt in his judgment fully explains the whole law. 4 Ibid. 352. R. v. Hodgson and Others, 1 Leach, 6. (6.) Three persons go out to practise with a rifle and manage their practice so carelessly that a person is killed by a shot fired by one of them : all are guilty of manslaughter. ARTICLE 39. ACCESSORIES BEFORE THE FACT. 3 An accessory before the fact is one who directly or indirectly counsels, procures, or commands any person to commit any felony or piracy which is committed in consequence of such counselling, procuring, or commandment. Every one who would have been an accessory before the fact if the crime committed, procured, or commanded had been a felony, is a principal if that crime is misdemeanor. Knowledge that a person intends to commit a crime, and conduct connected with and influenced by such knowledge, is not enough to make the person who possesses such knowledge, or so conducts himself, an accessory before the fact to any such crime, unless he does something to encourage its commission actively. B Illustrations. (1.) A supplies B with corrosive sublimate, knowing that B means to use it to procure her own abortion, but being unwilling that she should take the poison, and giving it to her because she threatened to kill herself if he did not. B does so use it and dies. Even if B is guilty of murdering herself, A is not an accessory before the fact to such murder. (2.) B and C agree to fight a prize fight for a sum of money; A, knowing of their intention, acts as stakeholder. B and C fight, and C is killed. A is not present at the fight and has no concern with it except being stakeholder. Even if in such a case there can be an accessory before the fact, A is not accessory before the fact to the manslaughter of C. 1 R. v. Salmon, L. R. 6 Q. B. D. 79. 21 Hale, P. C. 615; 2 Hawk. P. C. 442; 1 Russ. Cr. 49-77. As to principals and accessories in forgery, see 2 Russ. Cr. 790. In the following Articles I use the word "instigate as equivalent to "counsel, procure, or command." Draft Code, s. 71. 3 R. v. Cooper, 5 C. & P. 535-7. 11 & 12 Will. 3, c. 7, s. 9. 5 R. v. Fretwell, L. & C. 161. Contrast with this R. v. Russell, 1 Moody, 356. 6 R. v. Taylor, L. R. 2 C. C. R. 147. ARTICLE 40. WHERE CRIME SUGGESTED IS COMMITTED IN A DIFFERENT WAY. 1 1 When a person instigates another to commit a crime, and the person so instigated commits the crime which he was instigated to commit, but in a different way from that in which he was instigated to commit it, the instigator is an accessory before the fact to the crime. Illustration. A advises B to murder C by shooting, B murders C by stabbing, A is accessory before the fact to the murder of C. ARTICLE 41. WHERE CRIME COMMITTED IS PROBABLE CONSEQUENCE OF CRIME SUGGESTED. 2 If a person instigates another to commit a crime, and the person so instigated commits a crime different from the one which he was instigated to commit, but likely to be caused by such instigation, the instigator is an accessory before the fact. 3 Illustrations. (1.) A describes C to B, and instigates B to murder C. B murders D, whom he believes to be C, because D corresponds with A's description of C. A is accessory before the fact to the murder of D. 3 (2.) A instigates B to rob C, B does so, C resists and B kills C. A is accessory before the fact to the murder of C. (3.) A advises B to murder C (B's wife) by poison. B gives Ca poisoned apple, which C gives to D (B's child). B permits D to eat the apple, which it does, and dies of it. A is not accessory to the murder of D. 1 Foster, 369-70; Draft Code, s. 72. 2 Ibid. 370; Ibid. s. 72. Foster, 370. Saunders' Case, Plowd. 475; 1 Hale, P. C. 431. This decision is of higher authority than Foster's dicta; and marks the limit to which they extend, if it does not throw some doubt on them. D ARTICLE 42. WHERE INSTIGATION IS COUNTERMANDED. 1 If an accessory before the fact countermands the execution of the crime before it is executed, he ceases to be an accessory before the fact, if the principal had notice of the countermand before the execution of the crime, but not otherwise. Illustration. 1A advises B to murder C, and afterwards, by letter, withdraws his advice. B does murder C. A is not an accessory before the fact if his letter reaches B before he murders C; but he is if it arrives afterwards. ARTICLE 43. INSTIGATION TO COMMIT A CRIME DIFFERENT FROM THE ONE COMMITTED. 2 When a person instigates another to commit a crime, and the person so instigated commits a different crime, the instigator is not accessory before the fact to the crime so committed. Illustration. A instigates B to murder C, B murders D, A is not accessory before the fact to the murder of D. ARTICLE 44. ACCESSORIES AND PRINCIPALS IN SECOND DEGREE TREATED AS PRINCIPALS IN FIRST DEGREE. 4 Accessories before the fact, principals in the second degree, and principals in the first degree in any felony, 11 Hale, P. C. 618. In the case supposed the instigator would probably have committed the offence of inciting to the commission of a crime (Art. 47), though he would not be an accessory before the fact. It may also be doubted whether this doctrine would extend to the case of a man who did his best to countermand his advice, but failed, as by an accident in the course of post, &c. 2 Cf. Draft Code, s. 72. Foster, 369, s. 1. 24 & 25 Vict. c. 94, s. 2, as explained by R. v. Hughes, Bell, C. C. 242. The section referred to applies only to cases in which a felony has been committed, and does not affect the common law offence of inciting to commit a felony (Art. 47). R. v. Gregory, L. R. 1 C. C. R. 77. are each considered as having committed that felony, and each may be indicted, tried, convicted, and punished as if he alone and independently had committed the felony; although any other party to the crime may have been acquitted. 1 ARTICLE 45. ACCESSORIES AFTER THE FACT. Every one is an accessory after the fact to felony who knowing a felony to have been committed by another, receives, comforts, or assists him, 2 in order to enable him to escape from punishment; or rescues him from an arrest for the felony; or having him in custody for the felony, intentionally and voluntarily suffers him to escape; or opposes his apprehension, Provided that a married woman who receives, comforts, or relieves her husband knowing him to have committed a felony, does not thereby become an accessory after the fact. ARTICLE 46. PUNISHMENT OF ACCESSORIES AFTER THE FACT IN GENERAL AND UNDER THE CONSOLIDATION ACTS. 3 Every accessory after the fact to any felony is guilty of a substantive felony for which he may be convicted, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and for which he may be indicted either together with the principal felon or alone (except where it is otherwise specially enacted). 1 1 Russ. Cr. 63-6; 1 Hale, P. C. 618–20; 2 Hawk. P. C. Bk. II. c. 29; Draft Code, s. 73. 2 As to the addition of these words, see 2 Hawk. P. C. Bk. II. c. 29, ss. 28-9. 3 24 & 25 Vict. c. 94, ss. 3, 4, as interpreted by R. v. Falcon, L. & C. 217. Each of the Consolidation Acts contains a section providing specifically that acces sories before the fact, and principals in the second degree to felonies punishable thereby, shall be liable to the same punishment as the principals. These provisions would seem to be co-extensive in their operation with those of 24 & 25 Vict. c. 94, ss. 3, 4. See 24 & 25 Vict. c. 96, s. 98; Ibid. c. 97. s. 58; Ibid. c. 98, s. 49; Ibid. c. 99, s. 35; Ibid. c. 100, s. 67. |